GIFT   OF 
Felix  Flttgel 


l  '  ' 


T.     e- 


&•&•* 


x 

-^ 


SCRAP  BOOK.! 


LAW  AND  POLITICS,  MEN  AND  TIMES. 


BY 


GEORGE  ROBERTSON,  L,  L,  D, 


MINIMA   PARS    SUI. 


"Non  sibe  sed  Pratria." 
"Non  ego  ventosa  venor  suffragia  Plebis." 


LEXINGTON,  KT: 

A.    W.   ILDEB,   PRINTER   AKD    PUBLIB 


R55 


DEDICATION. 


TEE  ATJTHOB  TO  HIS  CHILDREN:— 

Hoping  that  it  may  be  a  safe  gutde  to  you  andyoui3*,  in 

time  to  come,  your  Father  affectionately  dedicates  to  you  and,  through  you,  to  your  descendants, 
this  humble  volume  of  his  occasional  effusions,  as  a  faithful  memorial  of  principles  and  conduct 
which  he  hopes  that  you  will  approve  and  try  to  illustrate. 

"Avise  lefin"— 
"Soyezferme." 


[COPY  RIGHT   SECURED.] 


1 1  ^Lx 


PREFACE. 


WISHING  to  exhibit  a  sample  of  his  capabilities  as  Printer  and  Binder, 
recently  established  in  the  city  of  Lexington,  Ky.,  the  Publisher, 
understanding  that  the  Hon.  GEORGE  ROBERTSON  retained  copies  of  many 
of  his  miscellaneous  addresses,  the  publication  of  which,  in  a  more  per 
manent  form,  had  been  desired  by  many  friends,  obtained  his  consent  to 
publish  such  of  them  as  constitute  this  volume. 

In  making  the  selection,  variety,  as  well  as  utility,  has  been  consulted. 
Some  of  the  selected  articles  are  on  constitutional  principles  of  vital 
importance — some  on  interesting  questions  of  legislation  and  political 
economy — some  on  general  jurisprudence — and  others  literary,  bio 
graphic,  and  historic. 

The  author,  not  desiring  such  a  publication,  during  his  life,  yielded  his 
consent  to  it  now,  as  he  informed  the  Publisher,  chiefly  for  the  purpose  of 
preserving  fugitive  writings,  which  he  desires  to  save  and  transmit  to  his 
posterity;  and  he  is,  therefore,  permitted  to  dedicate  to  his  children — a 
volume  which  the  Publisher  hopes,  that  not  only  they,  but  the  Public,  and 
especially  of  Kentucky,  will  find  to  contain  sound  principles,  interest 
ing  facts,  and  wholesome  counsels. 

The  mechanical  execution  is  not,  altogether,  as  satisfactory  as  was 
desired  and  expected.  Typographical  errors  have  resulted  from  acci 
dent  and  haste.  But,  while  most  of  these  are  too  minute  for  a  special 
reference  to  them,  only  a  few  pervert  or  obscure  the  sense.  One  of  the 
later  may  be  found  in  the  fourth  line  of  the  first  page,  where  "GOVERNOR" 
is  misprinted  for  LIEUT.-GovERNOR.  Matter  also,  which  the  larger  and 
more  open  style  of  ordinary  book  print,  would  have  extended  to  at  least 
650  pages,  having  been  compressed  into  only  402  pages,  the  volume  is 
neither  as  readable,  nor  as  attractive  to  the  taste  as  it  might,  at  no 
greater  cost,  have  been  made.  But,  with  all  its  faults,  it  is  submitted 
to  a  generous  public,  who  will  be  concerned  more  for  the  substance  than 
the  form — the  body  than  the  drapery. 


PRELECTION. 


At  the  annual  election  in  August,  1816,  George  Madison  was  elected  Gover 
nor,  and  Gabriel  Slaughter  Lieutenant  Governor  of  Kentucky.  Madison  took 
the  official  oath,  but  died  in  October,  1816,  before  he  had  entered  on  the  duties 
of  his  office,  which  having  devolved,  under  the  constitution,  on  the  Governor 
elect,  Slaughter  undertook  the  performance  of  them,  and  appointed  John  Pope 
Secretary  of  State.  Mr.  Pope,  as  a  prominent  politician,  had  become  obnoxious 
to  the  prejudices  of  the  dominant  party,  under  the  banner  of  his  former  rival, 
Henry  Clay.  That  party  manifested  general  and  violent  dissatisfaction  at  the  ap 
pointment  of  Pope,  who  they  feared  would  control  the  State  administration  and  dis 
pense  its  executive  patronage.  To  get  clear  of  him,  some  of  his  leading  oppo 
nents  proposed  the  election  of  a  new  Governor  to  fill  the  office  during  the  resi 
due  of  the  term  for  which  Madison  had  been  elected;  and  that  purpose  engaged 
the  attention  and  agitated  the  passions  of  the  people  of  Kentucky  with  extraordi 
nary  fervor  for  more  than  a  year. 

At  the  first  legislative  session  succeeding  Madison's  death,  on  the  27th  day  of 
January,  1817',  Mr.  J.  Cabell  Breckinridge,  a  member  of  the  House  of  Represen 
tatives,  submitted  the  folio  wing  resolution: 

"Resolved,  That  the  General  Assembly  of  t}ie  Commonwealth  of  Kentucky 
provide  by  law  for  electing  a  Governor  to  fill  the  vacancy  occasioned  by  the  death 
of  our  late  Governor." 

For  that  resolution,  after  elaborate  discussion,  in  committee  of  the  whole,  the 
following  was  substituted: 

"Resolved  by  the  General  Assembly  of  the  Commonwealth  of  Kentucky,  That  the 
present  Lieutenant  Governor  is  entitled  to  hold,  by  constitutional  right,  the  office 
of  Governor  during  the  residue  of  the  term  for  which  his  late  Excellency,  George 
Madison  was  elected,  and  that  no  provision  can  be  made  by  law  for  holding  an 
election  to  supply  the  vacancy." 

On  the  30th  of  January,  1817,  the  House  adopted  the  substitute  by  the  follow 
ing  vote: 

Yeas — Messrs.  Barret,  Birney,  Blackburn,  Booker,  Bowman,  Caldwell,  Carson, 
Cook,  Cotton,  Cox,  Cummins,  Cunningham,  Davidsoa,  Davis,  Dollerhide,  Dun 
can,  (of  Lincoln)  Elleston,  Ewing.  Ford,  Gaither,  Garrison,  Gilmore,  Given, 
Goode,  Grant,  Green,  Grundy,  Harrison,  Hawkins,  Helm,  Holeman,  Hornbeck, 
H.  Jones,  Logan,  Love,  Marshall,  Mercer,  Mills,  Moorman,  Monroe,  McConnell, 
McHatton,  McMahan,  McMillan,  Reeves,  Robertson,  Rowan,  Rudd,  Shepherd, 
Slaughter,  Spilman,  S.  Stevenson,  Stapp,  P.  Stevenson,  Todd,  Green,  Underwood, 
Ward,  P.  White,  Weir,  Wickliffe.  Woods,  and  Yantis— 63. 

Nays — Messrs.  Speaker,  (J.  J.  Crittenden)  Armstrong,  Barbour,  Breckinridge, 
Clark,  Coleman,  Dallam,  Davenport,  Duncan,  (of  Davisss,)  Fleming,  Gaines, 
Hart,  Hickman,  Hopson,  Hunter,  Jamison,  Irvine,  J.  Jones,  Lackey,  Metcaife, 
Owings,  Parker,  Rice,  South,  Trigg,  Turner,  Wall,  and  W.  White — 28. 

On  the  same  day  the  Senate  concurred  by  the  following  vote: 

Yeas — Messrs.  Speaker,  (Ed.  Bullock,  of  Fayette,)  Bartlet,  Bowmar,  Chap- 
line,  Churchill,  Ewing,  Faulkner,  Griffin.  J.  Garrard,  W.  Garrard,  Hillyer,  HaV- 
din,  Jones,  Lancaster,  Mason,  Owens,  Perrin,  Sebree,  Sharp.  Simrail,  Smith, 
Thompson,  K.  Taylor,  Worthington,  Wickliffe,  Wood,  Waide,  Welch,  and  Wil 
son — 29. 

Nays — Messrs.  Chambers,  South,  and  Yancy — 3. 
1 


[2] 

To  carry  the  question  at  the  August  election  tn  1817,  the  defeated  party  effect 
ed  a  thorough  organization,  brought  out  candidates  in  all  the  counties,  and  agitated 
the  State  as  it  had  never  heen  moved  before.  At  that  election  the  following-  per 
sons  were  elected  members  of  the  House  of  Representatives: 

Nathan  Gaither  and  Cyrus  Walker,  of  Adair;  Anach  Dawson,  of  Allen;  Cave- 
Johnson,  of  Boorie;  John  Porter,  of  Butler;  Thomas  Fletcher,  of  Bath;  Joseph  R. 
Underwood  and  Hardin  Davis,  of  Barren;  William  Jewell,  of  Bullitt;  Edward  R. 
Che-w,*of  Breckinridge;  Larkin  Anderson,  of  Bracken;  John  L.  Hickman,  George 
W.  Baylor,  and  Samuel  G.  Mitchell,  of  Bourbon;  Jessee  Coffee,  of  Casey;  Alfred 
Sanford,  of  Campbell;  John  Mercer,  of  Caldwell;  William  N.  Lane  and  John  Don 
aldson,  of  Christian;  James  Gholson,  of  Cumberland;  John  Bates,  of   Clay;  Wm. 
Glenn,  of  Daviess;  Stephen  Trigg,  of  Estill;  Joseph   C.  Breckinridge,  John  Par 
ker,  and  Thomas  T.  Barr,  of  Fayette;  Alexander  Lackey,  of  Floyd;  William  P. 
Fleming  and  Michael  Cassedy,  of  Fleming;  Charles  S.  Todd  and  George  M.  Bibb, 
of  Franklin;  John  Cunningham,  of  Grayson;  Thompson  Ward,  of  Greenup;  Rob 
ert  P.  Letcher  and  James  Spilman,  of  Gavra?d;  Robert  Barret  and  John  Edmon- 
son,  of  Green;  William  O.  Butler,  of  Gallatin;  Aaron  Hart  and  Benjamin  Shack- 
lett,  of  Hardin;  William  K.  Wall  and  John  Givens,  of  Harrison;  David  White  and 
Charles  H.  Allen,  of  Henry;  Fortunatus  F.  Dulany,  of  Union  and  Henderson;  Wm. 
R.  Weir,  of  Hopkins;  Richard  Harbour  and  James  Hunter,   of  Jefferson;  William 
Walker,  of  Jessamine;  Joseph  Parsons,  of  Knox;  Benjamin  Duncan  and  Samuel 
Shackleford,  of  Lincoln;  Boanerges  Roberts  and  Presley  N.  O'Bannon,  of  Logan; 
Christopher  Haynes,  of  Livingston;  Thomas  Marshall,  of  Lewis;  John  Adair  and 
John  B.  Thompson,  of  Mercer;  Samuel  South,  John   Tribble,    and    Archibald 
Woods,  of  Madison;  Duvall  Payne  and  Walker  Reed,  of  Mason;  Moses  V  ickliffe, 
of  Muhlenburg;  Eli  Shortridge  and  John  Jamison,  of  Montgomery;  John  Rowan,. 
Samuel  T.  Beall,  and  Henry  Cotton.  Nelson;  Thomas  Metcalfe,  Nicholas;  James 
Johnson,  of  Ohio;  John  Dollerhide  and  Joseph  Porter,  Pulaski;  William  Clark,  of 
Pendleton;  William  Smith,  of  Rockcastle;  John  T.  Johnson  and  Garrett  Wall,  of 
Scott;  John  Logan,  George  B.  Knight,  and  Berrymari  P.  Dupuy,  of  Shelby;  Wil 
lis  Field  and  William  S.  Hunter,  of  Woodford;  Solomon  P.  Sharp  and  Cornelius 
Turner,   of  Warren;   Walter  Emmerson,  of  Wayne;  Fleming   Robinson,   II.   H. 
Bayne,  and  Richard  Cocke,  of  Washington. 

And  the  following  members  constituted  the  Senate  of  Kentucky; 
Anthony  Bartlett,  of  Henry  county;  Harman  Bowmar,  of  Woodford;  Jesse 
Bledsoe,  of  Bourbon;  Wm.  T.  Barry,  of  Fayette;  John  L.  Bridges,  of  Mercer; 
Samuel  Churchill,  of  Jefferson  and  Bullitt;  James  Crutcher,  of  Uardin;  Joseph 
Eve,  of  Knox  and  ("lay;  John  r'aulkner,  of  Garrard;  Dickson  Given,  Livingston 
and  Caldwell;  Thomas  G.  Harrison,  of  Washington;  James  Hillyer,  Henderson, 
Ohio,  and  Daviess;  John  Griffin,  Pulaski  arid  Casey;  Wm.  Hardin,  of  Breckin 
ridge,  Grayson,  and  Butler;  Francis  Johnson,  of  Warren  and  Allen;  Humphrey 
Jones,  of  Madison;  James  Mason,  of  Montgomery  and  Estill;  Wm.  Owens,  of 
Green  and  Adair;  James  Parks,  of  Fleming  and  Nicholas;  Josephus  Pen-in,  of 
Harrison  and  Bracken;  James  Simrall,  of  Shelby;  Ben.  South,  of  Bath,  Floyd, 
and  Greenup;  Richard  Southgate,  of  Campbell,  Pendleton,  and  Boone;  Richard 
Taylor,  of  Franklin  and  Gallatin;  Ilubbard  Taylor,  of  Clarke;  David  Thompson, 
of  Scott;  Joseph  Welch,  of  Lincoln;  Martin  H/Wickliffe,  of  Nelson;  Wm.  Wood, 
of  Cumberland  and  Wayne;  Wm.  Worthington,  of  Muhlenburg,  Hopkins  and 
Union;  Joel  Yancy,  of  Barren. 

On  the  2d  of  December,  1817,  upon  the  motion  of  Mr.  Roed,  a  select  commit 
tee,  consisting  of  Messrs.  Baylor,  Bibb.  Sharp,  White,  J.  T.Johnson,  Fletcher, 
Reed  and  Shortridge,  was  appointed  to  prepare  a  bill  for  a  new  election;  on  the  4th 
the  committee  reported  a  bill  providing  for  an  election  of  a  Governor  to  supply  the 
vacancy  occasioned  by  Madison's  death,  and  ulso  for  an  election  oj  a  Lieutenant, 


13] 

Governor  J or  the  samt  fractional  term,;  which  bil-1  passed  the  house  on  the  15th  of 
the  same  month  by  the  following  vote:       / 

Yeas — Messrs,  Speaker,  (Breckinridge),  Allen,  Anderson,  Barbour,  Barr,  Bay^, 
lor,  Bibb,'  Butler,  jCassedy,,  Chew,  Clark,  Davis,  Bawson,  Donaldson,  Dulany, 
W.  Emmersdn,  Field,  Fleming,  Fletcher,  Gholson,  Givens,  £rlenn,  Havwes,  Hick^ 
man,  Hopson,  J.  Hunter,  W,  S.  Hunter.  Jarnison,  C.  Johnson,  J.  Johnson,  Par 
sons,  Patton,  Payne,  J.  Porter,  Reed,  Roberts,  Sanford,  Sharp,  Shortridge,  South, 
Todd;'Tribble,  Tr5gg.K  Turner,  W.  Wall,  G.  W  all,  }Vard,  White,  and  Weif^-56. 

Nays — Messrs.  Adair,  Barret,  Bates,  B#yne,  Beall.  Cocke,  Coffee,  Cotton,  Cun 
ningham,  Duncan,^ J.  Emmerson,  Gaither,  Hart,  Jewell,  Knight,  Letch er,  Mar 
shall,  Mercer,  J.  Porter,  Robinson)xRowan^Shacklett,  8ha,ckelford,  Spilman,  Smith, 
Thompson,  Underwood,  C.  Walker,  Wickliffe,  and  Woods— 30. 

But,  on  the  18th  of  the  same  month,  the  Senate  refused  to  order  the  bill  to  be 
read  a  second  time,  and  thus  defeated  it  by  the  following  vote. 

On  the  question,  shall  the  bill  be  read  a  second  time? — 

Yeas — Messrs.  Barry,  Bledsoe,  Bowmar,  Chambers,  Given,  Johnson,  Parks, 
Perrin,  South,  South  gate,  H.  Taylor,  Thompson,  Wood,  and  Young — 14. 

Nays — Messrs.  Speaker,  (R.  Ewing,)  Bridges,  Crutcher,  Eve,  Faulkner,  Grif 
fin,  Hardin,  Harrison,  Hillyer,  Jones,  Owens,  Simrall,  II.  Taylor,  Welch,  WicK- 
lifte,  Wilson,  and  Worthingtoa  — 18.  /? 

When  the  canvass  for  1817  began,  it  was  believed  that  such  a  torrent  of  popu 
lar  sentiment  for  a  new  election  had  been  gotten  up  as  to  leave  scarcely  a  hope 
of  arresting  its  progress  or  diverting  its  course.  But  the  leading  men  who  be 
lieved  that  the  constitution  would  be  violated  and  Slaughter's  rights  outraged  by 
a  new  election,  determined  to  resist  it  to  the  utmost.  It  became  an  all-absorbing 
topic,  and  no  subject  ever  produced  more  intense  or  pervading  excitement  in  Ken 
tucky.  At  the  request  of  some  friends  at  Frankfort,  Mr.  Robertson,  then  just 
elected  to  Congress  from  the  Garrard  district,  before  he  was  2G  years  eld,  wrote 
the  following  constitutional  argument,  signed  "A  Kentuckian."  Those  friends, 
though  it  was  written  on  the  spur  of  the  occasion,  thought  fit  to  publish  it  in  a 
pamphlet,  entitled,  "  The  Constitutionalist,  by  a  Kentuckian,"  and  circulated  it 
extensively  through  trw  State.  It  was,  at  the  time,  supposed  to  have  had  a  very 
great  influence  on  the  public  mind,  and  to  have  contributed,  more  than  any  other 
means,  to  that  recoil  in  the  popular  sentiment  which  resulted  in  an  abandonment 
of  the  project  of  a  new  election  by  act  of  assembly.  A  review  of  the  scenes  of  that 
}'ear  would  be  interesting  and  rather  profitable  to  all  who  desire  to  understand  the 
history  of  Kentucky  measures  aiid  men. 


TO  THE  PEOPLE  OF  KENTUCKY. 


AN  humble  and  obscure  fellow-citizen  feels  [ 
it  his  duty  to  address  you  on  a  subject  which  i 
has    become    interesting  to   us  all;  and    one  ' 
which,  as  men  possessing  personal  rights,  and 
as  citizens  duly  appreciating  our  civil  and  po 
litical  privileges,  it  is  equally  our  duty  to  in 
vestigate  impartially  and  deliberately,  and  our 
interest  to  decide  correctly  and  independently. 
Since  the  universally  lamented  deat»h  of  our 
late  venerable  Chief  Magistrate,  the  question 
has  frequently  presented  itself  to  every  think 
ing  mind,  "How  and  by  whom  shall  this  chasm 
in  our  state  government,  which  we  so  deeply 
deplore,  be  filled?"     In  the  solution  of  this 
question  it  will,  on  a  thorough  and  impartial 
investigation,  be  found  there  is  no  intrinsic  dif 
ficulty.     And  had  you  turned  to  your  Consti 
tution,  and  read  it,  and  expounded  it  by  your 
'own  common  sense  for  yourselves,  disregard 
ing  the  pathetic   appeals  that  have  been   so 
•dexterously  made  to  your  feelings  and  preju 
dices,  there  would  have  been  no  contrariety  of 
opinion  on  this   much    abused   and  agitated 
subject;  and  instead  of  the  commotion  which 
now  pervades  this  country,  and  not  only  de 
grades  us  in  the  estimaton  of  our  astonished 
neighbors,  but  threatens  to  ruin  our   dearest 
rights,  there  would  have  been  perfect  repose, 
harmony  and  content.     But  some  of  those  who 
ought  to  have  been  among  your  best  friends 
have  availed  themselves  of  the  confidence  you 
had  reposed  in  their  intelligence  and  political 
integrity — not  to  give  you  sound  and  whole 
some  counsel,   nor  to  enlighten  your  under 
standings,  nor  to  lead  you  to  the  truth — but  to 
distort   and  misinterpret  the  Constitution,  to 
seduce  you  of  your  judgment,  and  drive  you 
into  error,  anarchy  and  confusion.     Instead  of 
addressing  your    reason,    men    from    whom 
we    should  have   expected  better  and  wiser 
things    have  vociferously    appealed    to  your 
feelings — instead  of  legitimate  argument,  they 
have  resorted    to  noisy  declamation — instead 
of  ever  mentioning  our  own  constitution,  tjuey 
take  us    with    a  gigantic    stride  across    the 
Atlantic  to  Greece,  and  Rome,  and  Africa,  to 
speculate  on  the  ruins  of  Athens,  Rome,  and 
Carthage.     Instead  of  showing  us  what  our 
constitution  is,  they  assay  all  their  ingenuity 
to  show  us   what  it  might  have  been;  and  in 
stead  of  telling  us  what   artificial  rights  we 
now  enjoy,  since  the  organization  of  our  polit 
ical  machine,  they  discant  in  swelling  strains 
about  our  natural  and  primitive   sovereignty 
and  equality,  which  every  man  in  Kentucky 
understands,  and  no  one  ever  did  or  will  deny 
It  is  thus  that  a  question  which,  of  itself,  wouk 
never   have  created  any  difficulty   or  excitec 
any  zeal,  has  become  an  electioneering  hobby 


and  a  constant  theme  of  inflammatory  declam 
ation.     It  has  been  so  entirely  metamorphosed 
by  distortion    of  features,  deceitful  attitudes, 
and  tinsel  dress,  that  many  honest  men,  not 
well  acquainted  with  it,  and  not  being  con- 
noiseurs  in  political  physiognomy,  have  been 
grossly  deceived   in  its  character.    Hence,  '"a 
lon-descript  Drama  has   been  set  on  foot  in 
his  country,  by  a  few  men,  for  what  purpose 
we  say   not,    which,    although,   in  the   first 
scenes,  it  so  much  excited  the  derision  of  the 
auditory,  that  it  was  deemed  a  Farce,  and  has 
only  yet  so  far  changed  its  aspect  as  to  induce 
some  to  think  it  a  harmless  Comedy,  will,  it 
is  feared,  unless  the  principal  dramatis  pcr- 
sonse  are  hissed  from  the  stage,  end  an  afflict 
ing  Tragedy.     By  those  few  men  are  meant  the 
noisy  few  who  have  been  writing,  speaking 
and  becoming  candidates   for  office,  to  prove 
;hat  we  must  have  a  new  election  of  governor 
before  the  expiration  of  the   deceased  gover 
nor's  constitutional  period  of  service,  or  in  oth 
er  words,  to  prove  that  they  are  on  the  side  of 
the  people  against  their  constitution;  in  other 
and  still  plainer  words,   against   the  people. 
When  this  constitutional  question  was   first 
propounded,  there  was  an  unprecedented  una 
nimity  in  the  State.     It  was  almost  universal 
ly  believed  that  there  was  no  room  for  a  ration 
al   doubt.      We    all    believed    that    Gabriel 
Slaughter  would  administer  the  government 
under  the  constitution,  until  the  expiration  of 
the  term  for  which  Madison  was  elected;  but 
as  some  circumstances  occurred  shortly  after 
the  introduction  of  the  Lieutenant  Governor 
into  the  gubernatorial  chair,  which  provoked 
a  few  men,  it  is  natural  to  suppose,  (even  if  we 
had  not  witnessed  it)   that  they  would  put 
their  ingenuity  on  the  Rack  to  torture  from 
it    a    device    by     which     affairs    might   be 
revolutionized     and    they     might     triumph. 
An  election  of  another  governor  was  the  spu 
rious  offspring.     Although  there  had  been  no 
doubt  on  the  constitution,  and  although  they 
themselves  could  not  doubt,  they  must  have 
hoped  by  sophistry,  denunciation,  and  adula 
tion  to  the  people  to  induce  others  to  believe 
what  they  could  not  themselves  believe — and 
in  trying  to  convince  others  they  have,  as  is 
very  common,  almost  convinced  themselves. — 
Under  false  colors  they  have  without  a  solita 
ry  argument,  but  merely  by  flatery,  and  pretty 
names  induced  many  honest,  unsuspecting  men 
to  join  them  in  their  unholy  crusade  against 
the  constitution.     And  though  the  advocates 
for  a  new  election  have  been  miraculously  con 
vinced  without  one  solitary  argument  that  will 
stand   scrutiny,  it  is  feared  many  are  so  firm 
ly  enlisted  and  have  so  far  committed  them- 


.    TO    THE    PKOPLE    OF    KENTUCKY. 


selves  that  nothing  short  of  mathematical  called  constructive  than  that  which  is  literal, 
demonstration  will  convince  them  back  again, ;  The  one  is  as  sacred  and  as  obligatory  as  the 
But,  hopeless  as  the  attempt  may  be,  it  is  the  other,  because  it  is  as  much  the  constitution. 
duty  of  every  good  citizen  to  make  an  effort;  Both  are  equally  constructive;  the  only  differ-, 
more  especially  as  he  may  thereby  prevent  the  '  ence  is  the  mode  of  construction.  Why  is  it 
further  extension  of  this  contagious  doctrine,  !  that  we  cheerfully  and  unhesitatingly  submit 
and  counteract  the  exertions  of  those  who,  en-  !  to  whatever  the  constitution  expressly  declares? 
couraged  by  an  accidental  accession  to  their  j  Is  it  because  there  is  any  affinity  between  the 
small  corps,  are  stimulated  to  redouble  their  I  sign  and  the  thing  signified;  or  language  and 
efforts.  That  the  attempt  now  to  elect  a  gov-  ideas?  No.  Language  is  conventional;  it  is 
ernor  is  a  flagrant  and  dangerous  violation  of  an  arbitrary  association  of  sounds  significant 
the  constitution  is,  I  have  no  doubt,  as  conclu-  jby  compact.  Therefore  when  we  hear  a  man 
sivcly  demonstable  from  that  instrument  it-  |  speak  we  affix  to  his  expressions  that  meaning 
self,  as  any  question  can  be,  that  is  susccpti-  j  which  common  usage  and  consent  have  given 
ble  of  the  remotest  doubt.  And  to  demon- j  to  them.  If  one  man  make  to  another  a  prom- 
strate  to  every  man's  conviction,  who  is  not  jise  in  language  plain  and  simple,  how  is  his 
under  the  influence  of  an  inflexible  predeter-  j engagement  to  be  understood  and  performed? 
mination,  that  it  would  be  unconstitutional  |  In  the  way  in  which  common  consent  inter- 
to  elect  a  governor  before  the  expiration  of  the  'prets  his  words;  and  although  he  might  have 
term  for  which  Madison  was  elected,  so  that  Iliad  a  different  meaning,  he  is  nevertheless  ab- 
there  will  be  no  ground  left  for  a  rational  i  solutely  bound  by  that  which  his  words  inva- 
doubt,  is  the  only  object  of  this  essay.  riably  import.  Is  not  this  solely  because  it  is 

To  effectuate  this  object  I  only  ask  that  you  presumed  that  he  intended  to  convey  the  same 
will  go  with  me  to  the  constitution,  and  ini-  j  ideas  by  his  words  that  other  men  do?  What 
partially  and  attentively  explore  it,  expelling  jis  even  this  then  but  construction?  And  Avhat 


from  your  minds  every  extraneous  argument, 
and  forgetting  that  you  had  ever  thought  on 
the  subject;  and  if  the  result  be  not  a  thor 
ough  and  indubitable  conviction  that  the  con 
stitution,  not  only  docs  not  authorize  a  new 
election,  but  by  "every  fair  and  permissable 
construction  interdicts  the  exercise  of  that 
privilege,  it  must  be  because  "A  man  convin 
ced  against  his  will,  is  of  the  same  opinion 
still." 

Preparatory  to  the  investigation  of  this  sub 
ject,  it  should  be  premised  that  ours  is  a  gov 
ernment  of  laws  and  not  of  men.  Our  con 
stitution  is  the  basis;  the  laws  we  make  in 
unison  with  it  are  all  mere  superstucture. 
The  constitution  is  the  great  charter  of  our  so 
cial  compact,  defining  and  distributing  the 
functions  of  political  sovereignty.  It  is  an  ar 
ticle  of  agreement  between  the  people  and 
their  functionaries.  The  former  have  no  more 
right  to  alter  or  modify  it,  except  in  the  way 
therein  provided,  than  the  latter.  And  our 
political  rights  arc  secure  or  insecure  in  pro 
portion  to  the  degree  of  our  respect  and  ven 
eration  for  that  sacred  instrument.  The  sover 
eignty  therein  transferred  is  not  reclaimable  at 
our  mere  whim  or  pleasure;  when  we  wish  to 
know  what  right  or  power  we  have  thereby 
delegated,  and  what  retained,  we  must  advert 
to  that  instrument  itself;  and  if  there  should  be 
an  apparent  ambiguity  in  any  clause  or  arti 
cle,  we  should  examine  the  whole  attentively, 
and  give  that  construction  which  would  make 
all  the  different  parts  consistent;  we  should  re 
sort,  to  the  established  rules  of  construction, 
and  whatever  inference  we  deduce  by  this 
process,  is  as  much  an  inviolable  part  of  the 
constitution  as  anything  that  the  words  may 
literally  and  undeniably  import.  To  prove 
this  by  argument  is  useless;  for  it  is  an  axiom, 
the  truth  of  which  no  man,  who  is  capable  of 
investigation,  can  controvert. 

Let  it  not  be  said  that  we  have  any  more 
right  to  violate  or  disavow  that  which  may  bo 


is  this  obligation,  other  than  constructive? 

But  when  words  are,  in  themselves,  uncer 
tain,  how  do  we  understand  them?  Why  cer 
tainly  in  no  other  sense  than  that  in  which  we 
presume  they  were  intended  to  be  understood. 
To  solve  difficulties  of  this  kind,  common  con 
sent  has  established  certain  criteria,  or  rules  of 
construction  to  which  we  must  resort,  and  by 
which  ambiguous  expressions  arc  to  be  inter 
preted.  These  rules  are  coeval  mith  language 
itself,  and  are  founded  in  its  constitution  and 
in  common  sense.  This  is  then  a  part  of  the 
same  compact  by  which  words  are  made  sig- 

•  r*  fir-l  1  •       •    1  1 


nificant.     When  an    individual    uses 


which  are  literally  doubtful,  it  is  to  be  pre 
sumed  he  intended  to  convey  by  them  that 
meaning,  which  those  universal  and  funda 
mental  rules  established  by  general  consent 
give  to  them.  This  is  construction;  but.  no 
more  so  than  giving  to  words  that  meaning 
which  common  consent  says  they  literally  im 
port,  is  construction.  The  meaning  in  both 
cases  is  founded  on  and  deduced  from  com 
pact;  and  the  only  difference  between  them  is, 
as  In-fore  remarked,  the  process  by  which  it  is 
ascertained.  If  a  man  make  a  contract,  the 
literal  meaning  of  which  is  doubtful,  is  it  not 
construed  by  the  rules  we  have  mentioned? 
ArM  is  he  not  as  much  bound  by  this  interpre 
tation,  as  if  there  had  been  no  necessity  to  re 
sort  to  them?  Certainly  he  is. 

Apply  these  preliminary  remarks  to  our 
constitution.  Ask  yourselves  if  there  be  any 
real  ambiguity  in  that  instrument  in  regard  to 
the  question  about  to  be  discussed.  If  you 
should  think  there  is,  only  ask  yourselves,  to 
ivhat  inference  the  proper  and  universal  rules 
of  construction  will  certainly  and  inevitably 
:ead.  If  they  will  authorize  the  belief  that  the 
constitution  does  not  deprive  you  of  the  right 
to  elect  a  new  governor  under  existing  circum 
stances,  it  will  be  admitted  that  you  have  the 


tho 
Contrary,  if  they  will  convince  you  (of  which  I 


oower  to  exercise  it,  if  you  choose.   But  on 


TO    THE    PEOPLE    OF    KENTUCKY. 


have.no  doubt)  that  you  cannot  consistently 
with  the  constitution  exercise  this  privilege,  I 
presume  and  hope  that  every  honest  and  can 
did, man  will  frankly  acknowledge  that  the 
right  does  not  exist,  and  will,  without  a  mur 
mur,  cheerfully  submit  to  the  present  state  of 
thi-ngs,  consoling  himself  that  it  was  ordained 
by  his  country,  and  decreed  by  one  of  the 
wisest,  best,  and  freest  constitutions  extant  in 
the  world. 

I  shall  endeavor  to  show  you,  as  briefly  as 
the  nature  of  the  subject  will  permit,  that  there 
is  no  ambiguity  in  the  constitution  in  relation 
to  the  present  question.  But,  if  there  should 
•be,  when  it  is  attentively  examined  and  cor 
rectly  expounded,  no  dispassionate  man,  in  his 
senses,  and  honestly  in  pursuit  of  truth,  can 
possibly  doubt. 

In  the  investigation  of  this  subject  I  shall 
not  follow  the  zigzag  and  declamatory  course 
that  the  advocates  of  a  new  election  have  pur 
sued—but  will  take  the  constitution  for  my  com 
pass,  and  reason  for  my  square.  I  shall  not, 
as  they  have  done,  endeavor  insidiously  to  as 
sail  vour  feelings  and  alarm  your  fears,  but 
shall  openly  appeal  to  your  judgments,  with 
no  other  weapons  than  reason  and  the  consti 
tution.  All  I  shall  ask  of  those  advocates,  is 
to  make  the  following  admissions:  1st.  That 
we  have  a  constitution.  2d.  That  it  is  not 
right  to  violate  it.  3d.  That,  that  and  that 
alone  should  control  us,  and  determine  for  us 
the  present  question.  And  4th.  That  if  it 
should  be  doubtful  we  should  examine  the 
whole  of  it,  and  give  it  such  a  construction 
as  will  make  all  the  parts  harmonize,  and  give 
them  all  effect, 

And  all  I  shall  ask  of  you  is  your  attention, 
your  impartiality  and  the  honest  exercise  of 
your  rational  faculties.  This  is  all  the  armor 
I  want;  with  these  weapons  I  fear  not  the  re 
sult.  At  the  thrcshhold,  I  will  concede  to  the 
new  election  men  all  that  they  have  based 
their  arguments  -on,  and  which  no  good  man 
ever  denied — which  is  that  we,  the  people,  are 
the  only  legitimate  source  of  all  political  -pow 
er;  and  that  our  government  was  instituted  by 
us  and  for  our  peace  and  happiness — but  with 
this  appendage  or  qualification — we  are  now 
sovereign,  only  so  far  as  we  are  not  circum 
scribed  or  restrained  by  our  own  act  and  con 
sent.  For  in  all  well  organized  societies,  it 
has  been  discovered  to  be  expedient  that  the 
people,  in  order  to  secure  their  civil  rights  in 
violate,  should,  by  one  great  primeval  act  of 
united  sovereignty,  establish  some  fundamen 
tal  principles,  which  even  they  themselves 
could  not  by  mere  legislation  control.  This 
is  their  constitution.  We  have  followed  their 
example.  Let  it  not  be  forgotten  that  we  have 
a  CONSTITUTION— one  which  it  is  our  du 
ty  and  our  best  interest  ever  to  revere  and  de 
fend;  and  one,  even  the  confines  of  which  it 
would  be  worse  than*  sacrilege  to  invade;  for  it 
is  the  bulwark  of  our  dearest  rights  religious, 
civil,  and  political. 

The  moment ous  question  now  recur? — What 
does  this  instrument  pronounce  on  the  subject 
now  agitating  this  country?  T  think  its  lan 


guage  is  plain  and  decisive.  It  may  be  found 
in  the  following  clauses: 

ARTICLE  3,  SEC.  1 .  "The  supreme  executive 
power  of  the  commonwealth  shall  be  vested  in 
<  a  chief  magistrate,  who  shall  be  styled  the 
;  governor  of  the  commonwealth  of  Kentucky." 

SEC.  4.  The  governor  shall  be  elected  for  the 
term  of  four  years  by  the  citizens  entitled  to 
suffrage,  at  the  times  and  places  where  they 
shall  respectively  vote  for  representatives. 
!  The  person  having  the  highest  number  of  votes 
!  shall  be  governor;  but  if  two  or  more  shall  be 
'  equal  and  highest  in  votes,  the  election  shall 
|  be  determined,  by  lot ,  in  such  manner  as  the 
legislature  may  direct." 

ART.  3,  SEC.  16.  "A  lieutenant-governor 
shall  be  chosen. at  every  election  for. a  gover 
nor,  in  the  same  manner,  continue  in  office  for 
the  same  time,  and  possess  the  same  qualifi 
cations.  In  voting  for  governor  and  lieuten 
ant-governor,  the  electors  shall  distinguish 
whom  they  vote  for  as  governor,  and  whom  as 
j  lieutenant-governor. 

"SEC.  17.  He  shall,  by  virtue  of  his  office, 
be  speaker  of  the  senate,  have  a  right,  when  in 
committee  of  the  whole,  to  debate  and  vote  on 
all  subjects;  and  when  the  senate  are  equally 
divided,  to  give  the  casting  vote. 

"SEC.  18.  In  case  of  the  impeachment  of  the 
governor,  his  removal  from  office,  death,  refu 
sal  to  qualify,  resignation,  or  absence  from  the 
state,  the  lieutenant-governor  shall  exercise  all 
the  power  and  authority  appertaining  to  the 
office  of  governor,  until  another  be  duly  quali 
fied,  or  the  governor,  absent  or  impeached, 
shall  return  or  be  acquitted." 

"Ssc.  24.  A  secretary  shall  be  appointed  and 
commissioned  during  the  term  for  which  the 
governor  shall  have  been  elected,  if  he  shall  so 
long  behave  himself  well." 

"AitT.  2,  SEC.  30.  The  general  assembly 
shall  regulate  by  law,  by  whom,  and  in  what 
manner  writs  of  "election  shall  be  issued  to  fill 
tli£  vacancies  which  may  happen  in  cither 
branch  thereof." 

"AiiT.  6,  SEC.  3.  Every  person  shall  be  dis 
qualified  from  serving  as  a  governor,  lieuten 
ant-governor,  senator,  or  representative,  for 
the  term  for  which  he  shall  have  been  elected, 
who  shall  be  convicted  of  having  given  or  of 
fered  any  bribe  or  treat,  to  procure  his  elec 
tion." 

"SCHEDULE,  SEC.  5.  In  order  that  no  incon 
venience  may  arise  from  the  change  made  by 
this  constitution,  in  the  time  of  holding  tho 
general  election,  it  is  hereby  ordained,  that  the 
first  election  for  governor,  lieutenant-governor 
and  members  of  the.  general  assembly,  shall 
commence  on  the  first.  Monday  in  May  in  tho 
vcar  eighteen  hundred;  The  persons  then 
elected  shall  continue  in  office  during  the  sev 
eral  terms  of  service  prescribed  by  this  consti 
tution,  and  until  the  next  general  election, 
which  shall  bo  held  after  their  said  terms 
shall  have  rcspectivelv  expired.'' 

Tho  foregoing  are  faithful  extracts,  from  our 
present  constitution,  of  all  that  can  operate  on 
our  question.  They  contain  every  t-onierce, 
every  word  and  every  mark  of  punctuation, 


TO    THE    PEOPLE    OF    KENTUCKY. 


that  can  affect  the  subject,  condensed  in  one 
mass,  that  you  may  see  the  whole  at  one  view 
without  any  difficulty  or  false  coloring.  This 
is  the  text.  The  commentary  shall  be  candid, 
and  I  trust  satisfactory. 

I  would  ask  you,  in  the  first  place,  if  you 
had  never  thought  on,  or  heard  of  the  subject 
before,  could  you  see  anything  in  these  clauses 
that  requires  explanation?  Could  you  see  any 
incongruity  or  any  mystery  in  the  simple  ex 
pressions  which  they  contain.  No,  you  never 
would  entertain  a  doubt;  if  you  have  a  doubt, 
it  is  not  derived  from  the  constitution.  Hu 
man  language  could  not  be  plainer.  No  sub 
ject  could  require  more  perspicuity  than  char 
acterizes  every  part  of  the  foregoing  extracts. 
You  at  once  see  that  there  is  not  one  word  said 
about  a  new  election  to  fill  a  vacancy  which 
might  occur  in  the  office  of  goATernor,  but  that 
many  provisions  are  made  to  supercede  the  ne 
cessity  of  it  by  filling  the  vacancy  without  a 
special  election.  Consequently  there  can  be 
no  doubt  that  the  constitution  gives  us  no  au 
thority  to  elect  another  governor  at  this  time  or 
under  existing  circumstances. 

Although  this  will  be  acknowledged  by 
even  those  who  are  as  skeptical  as  Dr.  Douty: 
Yet  they  will  insist  that  it  is  not  necessary 
that  the  constitution  should  give  us  the  privil 
ege,  because  we  possess  it  inherently,  and 
have  a  right  to  do  this,  as  well  as  everything 
else  we  please,  unless  prohibited  by  the  consti 
tution.  This  I  deny,  and  could  refute  by 
showing  the  purposes  and  nature  of  our  gov 
ernment,  and  adducing  examples  in  which,  al 
though  there  is  no  express  constitutional  inhi- 
bation,  still,  there  can  be  no  legislative  right. 
But  as  I  have  no  doubt  of  convincing  every 
dispassionate  man,  without  resorting  to  this 
kind  of  argument  which  would  be  conclusive 
in  this  kind  of  case,  I  shall  not  consume  time 
by  endeavoring  to  prove  that  in  the  case  under 
consideration  the  constitution  must  give  the 
right  or  it  cannot  be  exercised,  but  wave  this 
question.  But  if  I  should  admit ,  for  argument 
sake,  that  we  have  a  right  to  elect  a  new  gov 
ernor,  unless  restrained  by  the  constitution,  I 
shall  now  undertake  to  prove  clearly  that  it 
would  be  palpably  inconsistent  with  that  in 
strument  under  existing  circumstances. 

The  only  question  then  for  me  to  discuss, 
and  for  you  to  decide,  is  whether  the  alledged 
right  to  elect  a  governor  before  the  expiration 
of  the  term  for  which  Madison  was  elected,  is 
interdicted  by  the  constitution,  or  is  inconsis 
tent  with  any  of  its  provisions.  If  I  show  that 
it  is,  I  shall  have  attained  my  object.  This 
proposition  is,  from  the  constitution,  almost 
self-evident.  It  is  very  clear  from  its  whole 
tenor  that  the  convention  never  intended  that 
an  accidental  vacancy,  in  the  executive,  should 
be  filled  by  popular  election. 

You  find  from  the  foregoing  extracts  that  the 
governor  is  to  be  elected  by  the  people  entitled 
to  suffrage,  at  certain  times,  for  the  term  of 
four  years,  and  thathe  shall  possess  certain  em  - 
rncrated  qualifications,  have  certain  defined 
powers  and  prerogatives,  ;md  receive  a  fixed 
f-alarv.  Yon  mav  find  nl<o  that  the  same 


I  parts  of  the  constitution  amendatory  of  our  first 
j  constitution  in  that  respect,  provide  for  the  elec 
tion  of  a  liexitcnant  governor  in  the  same  man 
ner,  at  the  same  time,  to  possess  all  the  same 
qualifications; — but  who  is  not  to  enjoy  the 
same  powers  and  privileges  nor  receive  the 
same  compensation,  except,  on  the  occurrence 
of  certain  contingencies;  and  who  then  becomes,, 
by  the  constitution,  invested  with  all  the  same 
power  and  authority,  and  receives  the  same 
pay  that  the  governor  elect  enjoys  while  in  the 
administration  of  the  government. 

Ask  yourselves  candidly  what  is  the  plain 
and  only  sensible  meaning  of  these  provisions? 
Why  is  a  governor  to  be  elected  for  four  years? 
The  reasons  are  obvious,  and  are  founded  in 
long  and  instructive  experience  and  the  wisest 
policy.  But  the  members  of  the  convention 
did  not  forget  that  the  m»n  whom  we  might 
elect  as  our  chief  executive  officer,  would  be 
mortal,  and  liable  to  all  the  casualties  incident 
to  humanity.  That  they  ruminated  extensive 
ly  and  profoundly  on  this  subject  is  evident 
from  the  ample  and  detailed  provisions  they 
have  made  to  obviate  any  difficulty  and  pre 
vent  any  possible  inconvenience.  Examine 
those  provisions  attentively;  observe  the  fore 
cast,  the  exactness,  the  nice  precaution  of 
those  who  made  them.  They  have  provided 
against  an  interregnum,  in  the  event  of  almost 
any  possible  contingency.  Have  they  said  one 
word,  among  all  those  provisions,  about  a  spe 
cial  election  of  a  governor?  Certainly  not. 
Is  it  reconcilable  with  any  rational  or  author 
ized  construction  to  suppose  that  they  intend 
ed  one  should  be  elected,  at  any  other  time  or 
in  any  other  manner  than  those  prescribed  by 
the  constitution?  If  it  is,  then  you  must  say 
that  those  men,  some  of  whom  were  admired  as 
men  of  stupendous  intellects,  and  were  illustri 
ous  ornaments  of  their  state,  did  not  under 
stand  themselves.  For  if  they  intended  that 
we  should  have  the  right  to  elect  a  new  gover 
nor  under  circumstances  like  the  present,  they 
have  certainly  acted  in  a  manner  that  is  utterly 
inexplicable;  inade  a  great  many  rcduntant 
provisions  in  the  constitution  which  could  on 
ly  embarrass  and  mislead,  and  have  betrayed 
as  much  stupidity  and  folly  as  could  have 
been  exhibited  bv  much  weaker  men,  who 
had  no  design  in  what-  they  said.  But  such  an 
imputation  would  be  impious  ingratitude  to 
those,  to  whom  we  should  forever  be.  most 
grateful.  It  would  be  a  most  wicked  and  im 
potent  thrust  at  the  consecrated  character  of 
THAT  MAN,  whose  collossal  mind  and  lu 
minous  pencil  are  conspicuous  in  every  clause 
of  the  sacred  instrument  Avhich  he  drew,  and 
whose  memory  is  embalmed  in  the  hearts  of 
bis  contrymen. 

The  members  of  the  convention  thought  (and 
correctly  too)  that  they  had  left  no  room  for 

ubt.  They  had  said  all  and  done  all  they 
could,  or  that  was  nc-ce.^sary,  if  they  intended 
hat  i here  Hiould  be  no  new  election;  if  they 
</M/in!ond  that  there  should  be  no  election,  what 
nore  or  else,  would  they  have  said  or  done? 
Xothing.  But  if  ihoy  had  intended  that  WP 
hould  elect  before  the  f?cpir.'!tj;->n  of  the  four 


TO    THE    PEOPLE    OF    Kfi.NTUCKT. 


years,  can  we,   as   honest,  candid,  intelligent  I  sistent,  and  it  will  also  be  acknowledged  that 
men,  say  or  believe  that  they  would  have  used  ;  no  provision  to  fill  such  vacancies,  otherwise 


the  language  they  have,  and  no  mo-e?     If  they  j  than  by  election,  is  to  be  fc 
had  designed  such  an  absurdity,  would  they  |  tion.     The    new  election 


found  in  the  constitu- 
inen  say    that,    for 

have  made  all  the  provisions  they  have  to  fill  I  these  reasons  the  legislature  would  have  had 
any  vacancythat  might  happen?  And  would  |  the  right  to  pass  any  law  they  might  think  ex- 
they  not  have  made  others  quite  different  and  pedientto  fill  these  vacancies  without  the  au- 
more  plain?  They  have  endeavored  to  be  as  thorization  of  the  convention  men.  These  lat- 
particular  and  perspicuous  as  possible.  But  ter  thought  differently;  but  we  have  admitted, 
if  they  intended  a  new  election,  have  they  been  j  for  argument,  that  they  thought  so  too — well, 
perspicuous  or  even  intelligible,  or  have  they  ( if  they  thought  so  too,  why  did  they  insert  this 
not  used  a  language  that  imports  a  meaning  j  special  clause?  Every  man  will  now  be  able 
different  from,  and  inconsistent  with  that  in-jto  answer.  It  was  because  they  feared  that 
tcntion?  But  explore  the  whole  of  the  consti-  '<  others  might  have  serious  doubts  on  this  sub- 
tution,  and  observe  how  consistent,  how  plain,  'jcct;  that  there  might  be  a  difference  of  con- 
how  cautious  and  particular  they  have  been  in  '  struction,  which  it  was  their  duty  to  prevent. 


They  have  therefore  inserted  a  special  clause, 
knowing  it  could  do  no  harm,  and  might  do 
good  by  precluding  the  possibility  of  miscon 
ception.  This  clause  is  therefore  not  mere  su 
pererogation.  Well,  if  they  thought  it  was 
sary,  in  order  to  prevent  any  doubt  or  in- 


e very  other  part.  For  fear  of  doubt  or  incon 
venience,  they  have  provided  expressly  for  the 
election  of  members  to  fill  both  branches  of  the 
legislative  department,  when  any  vacancy 
should  occur  in  either.  Why  did  they  not  in 
clude  the  executive?  The  reason  is  obvious; 

they  intended  to  exclude  him.  j  convenience  in  the  cases  which  it  embraces, 

When  they  were  so  circumspect  ac;  to  deem  must  they  not  have  known  it  was  much  moro 
it  proper  to  Insert  a  special  clause  authorizing  necessary  in  the  executive  department?  Cer- 
the  legislature  to  pass  a  law  declaring  how  and  '  tainlv;  because  for  the  latter  other  provisions 
by  whom  writs  of  election  should  issue  to  fill  j  are  made,  and  some  of  them,  as  I  will  presently 
vacancies  that  might  happen  in  either  branch  !  show,  inconsistent  with  a  special  election;  and 
of  the  legislature,  can  you  give  any  good  rea-  the  very  insertion  of  these  would  induce  any 

1.1  1-1  1       •  -T    "          ^     1  •  J         '   1  1   '  ^1  1  'l  1  J    '  •         J  1 


son  why  they  did  not  insert  a  similar  clause  in 


man  to  believe  that  such  election  was  intend- 


regard  to  the  executive  department;  was  it  not  ed  to  be  dispensed  with  for  wise  purposes.     I 
equally  proper  and  necessary?     Their  having  I  ask  then,   again,  why  were  not  executive  va- 


done  it  in  the  first  case  shows  that  they  thought- 
it  was  necessary;  if  they  had  intended  it  in  the 
latter,  would  they  not  have  used  the  same  pre 
caution?  l^ow,  whether  this  special  clause 
were  necessary  to  give  the  legislature  the 
right,  or  not,  is  totally  immaterial.  The  mem 
bers  of  the  convention  have  inserted  it  in  one 


cancies  included  in  the  special  clause  author 
izing  a  special  election?  Or  why  did  not  the 
people  say,  in  the  30th  clause  of  the  2d  article, 
•'The  Legislature  shall  direct  by  law  how  writs 
of  election  may  issue  to  fill  vacancies  that 
might  happen  in  either  branch  thereof,  or.  in 
the  EXECUTIVE?"  It  was  because  the  con- 


case  and  omitted  it  in  the  other,  and  the  very  |  vention  did  not  intend  that  there  should  be 
circumstance  of  their  having  used  it  in  the  one,  j  such  election.  They  thought  that  the  insertion 
when  perhaps  it  Avas  not  absolutely  necessary,  of  the  clause  in  one  case  and  the  omission  of  it 


shows  unanswerably  that,  in  the  other  not  em 
braced  by  it,  they  intended  that  the  right 
should  not  be  exercised. 

But,  if  this  argument  needed  any  support,  it 
is  strongly  fortified  by  another  consideration. 
In  the  cases  above  mentioned,  in  which  the 


in  the  other,  in  which  there  was  more  necessity  for 
it  if  it  had  been  intended,  the  ample  provis 
ions  which  they  had  otherwise  made  to  super- 
c<>de  the  necessity  of  an  election,  and  the  incon 
sistency  of  some  of  them  with  such  election, 
constituted  as  much  as  they  ought  to  door 


constitution  has  made  a  special  provision  for  could    do,    to   prevent   any  misconstruction, 
an  election  to  fill  vacancies,  there  was  no!  as  |  Yon  will  think  so  too. 
much  necessity  for  such  a  provision,  as  there 


certainly  would  be  for  one  for  a  new  election  to 
fill  vocancies  in  the  executive  department. 
For  in  the  former,  vacancies  that  might  happen 
were  not  otherwise  provided  for;  but  in  the  lat 
ter  they  are,  most  carefully  and  abundantly. 


But  if  it  were  possible,  from  the  foregoing 
considerations,  to  doubt  whether  the  conven 
tion  intended  a  new  election  or  not,  to  remove 
these  doubts  look  at  the  provisions  they  have 
made  to  render  it  unnecessary,  by  substituting 
other  officers,  in  case  of  the  death,  removal, 


The  advocates  for  a  new  election  say  that  the  j  etc.  (fee.  of  the  governor  elect.     And  how  can 


legislature  have  the  right  to  do  whatever  the 
constitution  does  not  prohibit.  As  we  are 
parsing,  let  us  again  admit  this.  To  what 
docs  it  lead?  Why  certainly  to  a  very  strong 
confirmation  of  the  reasoning  I  have  just  <le- 


you  then  doubt?  If  the  convention  could  pos 
sibly  have  intended  that  we  might  elect  a  suc 
cessor  before,  the  expiration  of  the  constitution 
al  term,  why  and  "for  what  purpose  did  they 
create  a  new  secondary  officer  unknown  to  the 


duced  from  the  special  clause  in  one  part  of  the  j  old  constitution?  Why  did  they  create  a  lieu- 
constitution.  For  it  will  be  acknowledged  tenant  governor?  For  if  they  intended  an 
that  there  is  no  clause  or  expression  in  the  con-  election  for  governor  to  be  held  at  the  next  an- 
slitution  which  inhibits  the  passage  of  a  law  nual  election  succeeding  the  death  or  removal 
authorizing  au  election  to  fill  vacancies  that ,  of  the  elect  governor,  the  lieutenant  governor 
might  happen  in  either  branch  of  the  legisla-  "would  b-?,  a  supernumerary;  because  in  that 
lure,  or  with  which  such  a  law  would  lie  incon-  event  th>?re  would  b»  no  necessity  for  tuch  an 


10 


TO    THK    PEOPLE    OF    KENTUCKY. 


officer.  For  the  provision  in  the  old  constitu-  or,  we  might  have  a  successor  who  was  our 
tion  was  amply  sufficient,  which  declared  that  I  next  choice,  without  the  inconvenience  and 
in  the  event  of  the  governor's  death,  etc.,  the  !  popular  zeal  and  commotion  generally  pro- 
speaker  of  the  senate  should  administer  the  j  duced  by  a  general  and  very  important  elec- 
government  until  another  governor  should  be  tion.  And  they  have  abundantly  shown  us, 


qualified.  Why  the  amendment  of  the  old 
constitution  in  this  respect?  In  creation  there 
is  always  some  design.  What  did  the  conven- 


that  they  did  not,  approve  the  policy  of  electing 
a  governor  oftener  than  once  in  four  years.  If 
there  should  be  any  doubt  of  the  truth  of  the 


tion  design  when  they  amended  the  old  con-   foregoing  positions,  it  will  be  entirely  removed 
fctitution   and    created   a  lieutenant-governor?  j  by  reasons  and  proofs  which  shall   be  given 
Was  it  merely  that  he  might  administer  the  !  presently,  in  their  proper  place, 
government  a"  few  days,  or  weeks,  or  months,       But  suppose  the  foregoing  view  of  the  inten- 
instead  of  the  speaker  of  the  senate,  when  in  tion  and  design  of  those  wise  men  who  adopt- 

1*  J  i*  At  1  •  1,11,1  J      '    A  1      '  11,11  .  .  -1, 


fact,  for  every  other  purpose  he  is  only  the 
speaker?  It  is  impossible,  because  there  was 
no  necessity,  no  motive  for  it.  The  provisions 
in  the  old  constitution  were  equally  as  good, 
and  therefore  would  not  have  been  so  radically 
changed  without  some  adequate  object.  Nor 
can  it  be  presumed  that  the  lieutenant  gover 
nor  was  created,  merely  to  act  occasionally  as 
speaker  of  the.  senate  when  they  should  be  in 
session,  and  have  no  office  in  vacation;  be 
cause  there  was  no  necessity  for  it  and  no  pro 


priety  in  it.     II 


Id  not  do  better  than  the 


speaker  who  might  be  chosen  by  the  senators 
themselves  from  their  own  body,  and  indeed  a 
recurrence  to  experience  will  convince  us  that 
the  speaker  chosen  by  the  senators  has,  -with  a 
very  few  exceptions,  discharged  the  functions 
of  the  chair  mith  more  dignity  and  ability  than 
the  lieutenant  governors  elected  by  the  people. 
But  why  should  the  convention  impose  upon 
the  senate  a  presiding  officer  who  would  not 
be  their  choice?  Why  not  permit  them  to  elect 
whomsoever  they  might  choose,  for  that  pur 
pose?  And  why  give  to  one  particular  county 
in  some  instances  a  double  representation  in 
the  senate?  And  why  put  us  to  the  trouble  and 
inconvenience  of  being  electioneered  with  and 
of  voting  for  a  man  merely  to  do  that  which  the 
speaker  of  the  old  constitution  could  do  as 
well,  and  in  nineteen  cases  out  of  twenty  a  great 
deal  better?  Why  should  this  man  possess 
any  qualifications  more  than  other  senators 
must  have  before  they  arc  eligible  to  a  seat  in 
the  senate,  if  he  is  created  merely  for  a  speaker? 
But  more  particularly,  why  is  it  necessary  that 
he  should  possess  precisely  the  same  qualifica 
tions  with  the  governor,  be  elected  at  the  same 
time,,  and  continue  in  office  for  the  same  time? 
I  believe  you  cannot  answer  these  interrogato 
ries  satisfactorily,  and  still  think  that  you  can 
elect  a  governor  before  the  expiration  of  Madi 
son's  term  of  service.  You  must  acknowledge 
that  such  an  answer  would  be  inconsistent 
with  a  sound  construction  of  the  constitution. 
It  is  very  obvious  that  the  convention  created  the 
lieutenant  governor  to  be  the  successor  of  the 
governor  in  case  he  should  die  or  resign,  (fee. 
for  the  remainder  of  his  term;  and  that,  01 
the  happening  of  any  of  those  contingencies 
mentioned,  he  should  oecome  the  governor,  and 


and  emolu- 

The 


have  all  the  power,  prerogatives, 
meuts  appertaining  to  the  office, 
that  induced  the  convention  to  designate  the 
lieutenant  governor  to  succeed  the  governor  for 
the  residue  of  his  term,  was  a  benevolent  one- 
It  was,  that  in  case  we  thonld  lo:-v  our  govern- 


•d  the  constitution,  collectable  convincingly 
"rom  the  plain  provisions  which  they  have 
nade,  should  leave  any  room  for  a  reasonable 
and  honest  difference  of  opinion,  the  impossi 
bility  of  electing  a  governor  before  the  quad 
rennial  election  prescribed  by  the  constitution, 
without  violating  some  of  "the  plainest  and 
wisest  provisions  of  that  instrument,  would  in- 
3rpose  an  insuperable  obstacle  and  hush  every 
serious  doubt.  How  will  you  elect  a  new  govern 
or  under  existing  circumstances?  The  consti- 
;utional  rights  and  duties  of  the  present  incum- 
aent  constitute  a  barrier  you  cannot,  you  daro 
not  surmount.  If  you  could  really  believe 
from  what  has  already  been  said  that  you  have 
he  right,  when  you  come  to  the  clauses  which 
speak  of  the  rights  and  duties  of  lieutenant 
governor,  how  and  when  he  shall  be  elected, 
the  duration  of  his  office,  <fec.,  where  will  you 
find  ground  for  hesitation?  Where  one  solita- 
•y  loop  on  which  to  hang  a  sluggish  doubt? 
'A  lieutenant  governor  shall  be  elected  at  every 
election  of  governor — in  the  same  manner,  con 
tinue  in  office  the  same  time."  Now  if  you 
proceed  to  elect  a  new  governor,  what  will  you 
do  with  the  lieutenant  governor?  You  have 
no  right  to  remove  him  against  his  will,  ex 
cept  by  impeachment.  But  if  you  elect  a  gov 
ernor,  the  constitution  is  imperious  that  you 
shall  elect  a  lieutenant  governor.  If  you  do 
so  you  thereby  remove  Slaughter;  this  you  are 
compelled  to  do,  or  not  elect  at  all."  What 
then  will  you  do?  How  extricate  yourselves 
from  this  dilemma?  You  hadbeen  told  very  dog 
matically  by  some  of  the  new  election  men, 
since  the  commencement  of  this  popular 
ity  campaign,  that  the  expressions  "at  every 
election  of  governor  a  lieutenant  governor  shall 
be  elected,"  only  alluded  to  ordinary  quadren 
nial  elections  spoken  of  in  the  constitution. 
Of  this  they  said  they  had  no  doubt.  Upon 
this  palpable  error  they  built  all  their  argu 
ments,  by  which  many  men  pretended  to  be 
convinced.  And  they  admitted  that  unless 
this,  their  novol  absurdity,  was  true,  you  could 
not  elect  a  new  governor  to  fill  the  remainder 
of  Madison's  term.  MARK  THIS,  I  earnest 
ly  beseech  you;  for  it  was  the  only  foundation 
of  their  opinions  and  hopes.  Look  at  the  fal 
lacy  and  palpable  absurdity  of  this  forced 
construction.  Only  pursue  the  course  to 
which  it  points,  and  see  where  you  will  end 
your  journey.  Elect  a  governor  at  the  next 
August  election,  (for  if  you  have  the  right  at 
all,  it  7nust  be  exercised  at  eome  annual  elec 
tion)  fer  tho  remainder  of  Mjulivon'*  term. 


TO    THE    PEOPLE    OF    KENTUCKY". 


without  a  lieutenant  governor,  what  will  be  the 
consequences?  Why,  a  palpable  violation  of 
the  constitution,  which  declares  he  shall  be 
elected  for  four  years.  Well, .  suppose  you 
elect  him  for  four  years,  what  then?  You 
have  a  governor  in  office  for  four  years,  and  a 
lieutenant  governor  in  office  for  only  three 
years.  And  at  the  expiration  of  these  three 
years  what  will  you  do  for  a  lieutenant  gover- 


but  still  he  was  constrained  to  decide  in  his 
favor  for  reasons  that  he,  the  lawyer,  had  nev 
er  seen  nor  touched. 

But  notice,  I  beg  you,  the  corner  stone  of 
the  newlv  conceived  argument.  They  admit 
that  you  must  elect  a  lieutenant  governor  at 
every'election  of  governor,  and  that  you  must 
elect  a  governor  for  four  years,  but  contend 
that  it  would  be  no  violation  of  the  constitu 
tor?  You  must"elect  one  or  have  none."  The  i  tion  to  supersede  Slaughter  before  the  expira- 
latter  you  would  not  tolerate,  the  former  you  j  tion  of  his  four  years  by  the  election  of  another 
could  not  constitutionally  do;  because  he  must  lieutenant  governor.  This  is  now  their  strong- 
be  elected  when  you  elect  your  governor,  and  hold,  behind  which  they  have  entrenched 
having  elected  your  governor  for  four  years,  j  themselves.  If  this  be  untenable  they  must 
you  cannot  elect  another  before  the  expiration  \  surrender.  Although  they  have  said  a  great 
of  that  time.  But  if  you  could,  you  would  in- 1  deal  on  the  subject,  you  will  bear  in  mind  that 
volve  yourselves  in  this  absurdity:  the  gover-  it  is  all  on  the  truth  of  the  foregoing  proposi- 
nor  you  would  elect  would  not  be  in  office  for  j  tion;  that  is  their  sandy  foundation;  all  the  rest 
•upwards  of  a  year  after  his  election,  and  the  is  but  embroidered  superstructure, 
lieutenant  governor  whom  you  elected  with  Now  it  does  seem  to  me  that,  if  there  ever 
him  would  go  into  office  instantly.  But  sup-  existed  an  absurdity  that  exposes  itself,  this  is 
pose  you  could  elect  your  lieutenant  governor  one.  If  this  be  the  correct  interpretation 
before  your  governor  or  your  governor  before  j  of  the  constitution,  why  was  it  never  before 
your  lieutenant  governor,  in  what  a  labyrinth  of  |  discovered?  If  it  be  so  plain  and  obvious,  why 
difficulties  would  you,  even  if  it  were"  permis-  never  before  perceived?  And  why  do  not  tlie 
Bible,  involve  yourselves?  You  would  never  unassisted  optics  of  common  men  perceive  it? 
thereafter  be  able  to  elect  a  governor  and  lieu-  J I  venture  to  say  that  no  man  in  Kentucky 
tenant  governor  at  the  same  time,  which  the  i  doubted,  when  Slaughter  was  elected,  that  lie 
constitution  expressly  requires.  These  consid-  j  was  in  office  for  four  years,  and  I  fear  not  to 
orations  will  prove  unanswerably  that  a  lieu-  j  say  unhesitatingly  that  no  man  who  had  never 
tenant  governor  must  be  elected  whenever  a  i  heard  of  this  new  construction  could  read  the 
governor  shall  be  elected  as  the  constitution 
directs. 


ner. 

The   advocates  of  a  new 


But  if  it  could  possibly  be  true  that  the  con 
vention  only  alluded  to" the  quadrennial  elec 
tions,  by  the  requisition  aforesaid,  then  it  is 
equally  true  that  they  could  not  possibly  have 
intended  that  there  should  be  any  other  elec 
tion  at  any  other  time  nor  in  any  other  man- 
election,  finding 
that  this  sophism  was  too  barefaced,  have  at 
last  abandoned  it,  and  taken  refuge  on  a  posi 
tion  equally  indefensible,  which,  with  their 
united  strength,  they  have  endeavored  to  forti 
fy  by  arguments  equally  fallacious.  And 
here  permit  me  to  pause,  "not  to  express  my 
own  surprise, (for  to  me  it  is  no  strange  matter) 
but  to  invite  you  to  look  at  the  facility  with 
which  some  men  change  the  most  important 
and  responsible  opinions.  And  to  ask  you,  if 
they  were  wrong  before,  (which  thev  acknowl 
edge)  is  it  not  more  probable  they  "are  wrong 
now?  If  you  had  believed  them  then,  they 
confess  you  would  have  erred;  if  you  believe 
them  now  I  have  no  doubt  you  will  equally 
err.  This  is  the  predicament  of  the  newspa 
per  advocates  of  a  new  election.  They  admit 
tkat  the  reasons  which  once  convinced  them, 
and  by  which  they  endeavored  most  pertina 
ciously  to  convince  others,  were  absurd,  but 
still  persist  that  their  opinion,  founded  on 
those  absurdities,  is  correct.  They  cetainly 
must  nave  been  encouraged  by  the  little  anec 
dote  of  a  judge  and  his  lawyer.  The  latter 
made  a  motion  to  the  former,  and  after  a  very 
long,  elaborate,  and,  as  he  thought,  able  argu 
ment,  was  told  by  the  judge  that  his  reasons 
and  arguments  were  absurd  and  ridiculous, 


constitution  impartially,  arid  doubt  that  lie 
was  elected  for  four  years.  The  constitution 
declares  that  a  governor  shall  be  elected  for  the 
term  of  four  years,  and  that  at  every  election 
of  governor  a  lieutenant  governor"  shall  be 
elected,  wrho  shall  possess  the  same  qualifica 
tions  and  continue  in  office  the  same  time. 
What  does  the  expression,  "continue  in  office 
'the  same  time,"  mean?  Would  you  not  say 
four  years?  Is  it  to  be  presumed  that  the  wise 
men  who  adopted  the  constitution,  would  cre 
ate  so  important  an  office  as  lieutenant  gover 
nor  without  defining  the  term  during  which 
he  should  serve?  Can  you  think  that  the  du 
ration  of  the  second  office  in  the  country  would 
be  uncertain?  This  would  be  sporting  with 
common  sense,  and  insulting  the  understand 
ing  of  those  who  framed  the  constitution. 

You  are  told  that  the  lieutenant  governor  is 
the  incident,  the  mere  automaton  of  the  gover 
nor,  and  goes  out  of  office  whenever  his  princi 
pal,  hia  master  may  resign,  die,  or  be  dis 
missed.  This  is  tantamount  to  saying  that  the 
governor  can  dismiss  the  lieutenant  governor 
whenever  he  may  choose  to  do  so.  For  I  pre 
sume  he  can  resign  when  he  may  think  fit. 
Do  you  believe  any  honorable  man  would  ac 
cept  an  office  which  he  must  hold  by  so  preca 
rious  and  servile  a  tenure?  It  would  be  a 
degradation.  Do  you  believe  that  the  framers 
of  the  constitution  ever  intended  that,  if  the 
governor  should  be  dismissed  from  office  for 
crime  or  misdemeanor,  the  lieutenant  gover 
nor  should  share  the  expulsion  or  disgrace? 
Did  they  intend  that  he  should  forfeit  his  of 
fice,  which  his  merit  had  earned,  merely  be 
cause  an  infamous  wretch,  over  whose  conduct 
he  had  no  control  and  for  which  ho  was  not 


12 


TO    THE    PEOPLE    OF    KENTUCKY 


responsible,  might  bo  disgracefully  forced  to  J  our  boast.     No;  it  is  tho  language  of  those  who 
surrender  his?     Why  should   he,    more  than  j  will,  if  you  permit  them,  distort,  mangle,  and 


any  other  member  of  the  senate,  or  of  the  gov 
ernment,  lose  his  ofiice  on  account  of  the  re 
signation,  death,  refusal  to  qualify  or  dismissal 
from  office  of  the  governor?  The  ^<-mvnniirm 


mutilate  that  sacred  charter,  to  subserve  their 

own  personal  purposes. 

Bur  ye  who  believe,  or  pretend  to  belicvethat 

__  0_. .the  lieutenant  governor  shall,   willing  or  un- 

nevcr  intended  it.  The  constitution  does  not  I  willing,  dead  or  alive,  continue  in  office  as 
require  it,  nor  even  permit  il.  It  means  only  long  as  the  governor  may  happen  to  continue 
what  it  plainly  says,  that  the  lieutenant  jover-  in  office,  and  no  longer,  be  so  good  as  to  an- 
nor  shall  he  elected  at  the  same  time  and  con-  i  swer  a  few  simple  questions,  which  you  should 
tinue  in  office  the  same  time  that  the  governor '  have  digested  before  you  adopted  or  pronmlged 
is  elected  to  continue — or  in  other  words,  it  this  opinion: — 1st.  lithe  lieutenant  governor 
means  thathes/m/Z  have  a  right  to  continue  in  can  only  continue  in  office  so  long  as  thegov- 
office  as  long  as  the  governor  has  a  right  to  con-  jernormny  happen  to  do  so,  suppose  the  goVer- 
tinue  in  office.  This  is  the  proper  transposi-  j  nor  should  refuse  to  qualify.,  and  the  lieutenant 
tion — this  is  filling  up  the  ellipsis.  For  the  [governor  had  qualified,  will  you  say  the  lieu- 
expressions,  "same  qualifications  and  same  tenant  governor  never  was  in  office?  2nd.  Has 
time"  must,  refer  to  some  antecedent  expres-  he  not  the  right  to  qualify  whenever  he  please?, 
sions.  They  certainly  do  refer  to  those  -"•— 1-'- 


prcvious  parts  of  the  constitution,  which  de 
fine  the  qualifications  of  the  governor  and  the 
duration  of  his  office — otherwise  they  would 
mean  nothing.  Then  the  "same  qualifications" 
which  the  lieutenant  governor  is  required  to 
possess,  mean  the  very  same  that  the  constitu 
tion  declares  the  governor  shall  possess — that 
is,  that  he  shall  he  35  years  of  age,  <te.,  and 
the  "same  time  as,"  certainly  refers  to  the  time 
the  constitution  declares  that  the  governor 
shall  continue  in  office,  that  is  four  years.  For 
if  the  word  same,  when  annexed  to  qualifica 
tions,  refer  you  to  the  constitutional  qualifica 
tions  of  the  governor,  it  certainly  means,  when 
annexed  to  time,  in  the  same  clause,  the  gover- 


after  his  term  of  service  shall  commence?  3d. 
Is  he  not  in  office  the  moment  he  shall  qualify? 
These  questions  you  are  bound  to  answer  af 
firmatively.  The  consequence  is,  that  the 
lieutenant  governor  is  in  office  when  the  gover 
nor  is  not)  and  further,  if  Ihc  governor  should 
happen  to  be  prevented  from  qualifying, 
by  indisposition,  absence  or  other  causes, 
one  year,  and  then  should  be  installed  into  of 
fice,  he  would  serve  three  years,  and  the  lieuten 
ant  governor  four;  for  he  could  not  be  in  office 
before  he  is  qualified,  and  the  lieutenant  gover 
nor  was  bound  to  administer  the  government 
until  he  should  qualify.  They  would  not  then 
continue  in  office  the  same  time,  according  to 
your  construction  of  the  expression.  It  is  made 


's  constitutional  time,  or  period  of  service,  the  duty  of  the  lieutenant  governor  to  adminis- 
Any  other  construction  would  confound  all  the  tor  the  government,  in  case  the  governor  should 
rules  of  the  English  language.  refuse  to  qualify,  u nt  il  a  governor  shall  be  duly 

But  you  are  told  you  must  give  a  most  rigid  qualified.  It  will  ho  admitted,  then,  that  in 
and  literal  construction  to  this  expression,  this  event  lie  is  in  office,  and  that  the  governor 
This  is  not  the  same  language  which  the  same  elect  is  not.  Then  ho  has  a  right  to  continue 
gentlemen  use  on  other  parts  of  the  constitu-  in  office,  although  the  governor  may  be  out  of 
tion.  I  care  not  how  punctilious  you  arc  in  ad 
herence  to  the  letter.  The  letter  imports  noth 
ing  more  nor  less  than  that  the  lieutenant  gover 
nor  shall  have  the  right  to  continue  in  office  as 
long  as  the  governor  has  a  right  to  continue 
in  office,  and  no  longer.  If  the  expression, 
"shall  continue  in  office  the  same  time,"  mean 
what  some  men  absurdly  say  it  docs.,  that  he 
shall  go  out  of  office  whenever  the  governor 
may  happen  to  die,  or  choose  to  resign,  or 
should  be  dismissed,  whether  he  is  willing  or 
not,  then  certainly  it  means,  by  the  same  con 
struction  and  for  the  same  reason,  that  he  shall 
be  compelled  to  continue  in  office  as  long  as 
the  governor  may  choose  or  may  be  permitted 
to  remain  in  his  office.  The  rule  must  be  re 
ciprocal,  and  when  the  language  is  the  same 
you  must  give  the  same  construction  to  either 
alternative.  But  to  what  absurd  anti-republi 
can  consequences  would  this  lend  ?  You  will 
invite  a  man  to  accept  one  of  the  first  offices  hi 
your  power  to  bestow  on  distinguished  merit, 
and  force  him  to  continue  in  that  office  just  as 
long  as  another  man  with  whom  he  has  no  con 
nexion  or  privity,  and  whom,  perhaps,  he  nev 
er  saw,  may  think  proper  to  retain  him.  Tins 
is  not,  cannot  bo  the  language  of  that  wise  and 
republican  constitution  which  is  our  shield  and  death,  he  hnd  forfeited  all  his  right  to  his  office? 


How  absurd  does  the  doctrine  now  appear, 
that  Slaughter  was  out  of  office  as  soon  as  Madi 
son  died?  But  let  us  exhibit  this  monster  in 
one  or  two  more  attitudes.  Suppose  governor 
Madison  had  refused  to  quality  as  governor; 
then  he  would  not  have  been  in  office — what, 
would  have  followed?  The.  constitution  tells 
us — Slaughter  would  have  had  to  qualify,  and 
take  on  him  the  administration  of  the  govern 
ment.  The  constitution  says  so.  It  declares 
that  in  case  the  governor  refuse  to  qualify,  tho 
lieutenant  governor  shall  administer  the'  gov 
ernment  until  a  governor  shall  be  duly  quali- 
fu-d.  Who  is  alluded  to  by  the  expression-, 
the  lieutenant  governor?  Why  certainly 
Slaughter;  it  could  not  have  heon  Hickman, 
(the  old  lieutenant  governor)  for  he  was  out  of 
office,  and  if  he  had  not  been  the  administration 
would,  by  the  constitution ,  have  devolved  on 
Shelby,  the  former  governor.  Then  the  consti 
tution  declares  that  if  Madison  should  refuse 
to  qualify,  Slaughter  should  qualify,  and  as 
sume  the  gubernatorial  functions.  How  would 
he  have  qualified?  As  governor?  ISTo;  certainly 
a>  lieutenant  governor.  But  how  could  he  qual 
ify  as  lieutenant  governor,  when,  by  Madison's 


TO    THS    PBOPI.B    OF    KENTUCKY. 


13 


But  if  there  were  no  other  expressions  in  the 
constitution,  the  word  continue  would  alone  be 
sufficient  for  my  purpose.     For  it  evidently  im 
plies  that  there  had  been  a  beginning — that  the 
tiling  to  be  continued  must  have  begun.     Thi.s 
•*»  would  show  that  the  lieutenant  governor  had  a 
*>ri£jto  tp  induction  into  office  whether  the  govcr- 
'•~  ritewliuld  or  would  not  qualify.     But  this  is  re- 
pdgnantto  the  construction  of  the  new  election 
men,  for  it  would  show  that  the  lieutenant  gov 
ernor  had  a  right,  to  continue  in  office, although 
the  governor  never  was  in  office.     But  again, 
how  could  the  lieutenant  governor,  Slaughter, 
i     administer  the  government  for  one  month,  after 
.7  Madison's  death,  if  by  that  event  he  lost  his  office 
*^  of  lieutenant  governor?     For  if  his  office   ex 
pired  when  Madison  expired,  he  was  that  mo 
ment  a  private  citizen,  and  no  more  lieutenant 
governor  than  any  one  of  you — but  still  we  hear 
^  oT  his  going  on  with  the  administration  of  the 
government,  not  as  a  private  citizen,  but  as  lieu 
tenant  govern  or;  and  again,  did  Col.  Slaughter, 
when  he  was  called  to  the  execution  of  the  du- 
\    ties  he  is  now  discharging,  take  any  new  oath? 
^7  presume  not,  because  it  was  not  necessary. 
But  if  he  had,  by  Madison's  death,  become  a 
mere  private  citizen,  certainly  it  would  have 
been  necessary  that  he  should  take  the  oath; 
because,  whenever  his  office  expired,  his  oath 
eeasedVo  operate — he  was  certainly  absolved 
from  any  liability  which  could  afterwards  re- 
Q  iult  from  that  departed  oath.     For  still  more 
>    lighten  this  subject,  I  would  ask  you  to  look  at 
the  5th  clause  of  the  Schedule  to  the  constitu 
tion,  which  declares  that  the  persons  elected  at 
the  first  general  election  after  the  adoption  of  the 
new  constitution,  "shall  continue  in  office  du 
ring  the  several  terms  of  service  prescribed  by 
the  constitution,  and  until  the  next  general  elec 
tion,  which  shall  be  held  after  their  said  terms 
shall  have  respectively  expired  "     Look  at  the 
whole  of  this  clause,  and  if  there  could  remain 
a  lurking  doubt,  I  think  it  will  vanish.     Look 
.particularly  at  "their  several  terms  <)f  service," 
.    and  "until  the  next  general  election,  after  their 
said  terms  shall  have  expired."     Yon  will  not 
fail  to  see  that  the  lieutenant  governor  is  in- 
^liuled  with  the  other  officers.     He  is  then  to 
cominue  in  office  during  his  term  of  service,  pre 
scribed  by  the  constitution.     What  do  you  un- 
0  derstand,  what  did  the  convention  understand, 
''Vh  at  does  every  man   understand,  by  a  term? 
Not  an  uncertain,  vague,  indefinite  period,  de 
pendent  on  casuality,    and    of   uncertain,  un 
known   duration — but   a    fixed,    definite  pro 
scribed  period,  of  certain  and  known  extent. 
What,  then,  did  the  convention  mean,  by  the 
clause  just  quoted?     Every  man  will  answer, 
they  meant,  as  regards   the   lieutenant   gover 
nor,  by  the  expression,  "term  prescribed" — the 
term  of  four  years — otherwise  they  meant  noth 
ing,  which  cannot  be  justly  imputed  to   them. 
You  can  as  little  doubt  that,  by  the  expression, 
"the  next  general  election,"  is"  meant  the  gen 
eral  election  at  the  end  of  the  respective  term  - 
C'fthe  officers;  that  is,  four  years  afier  the  for 
mer  election  mentioned  in  the  constitution.     It 
<*ouldiyt  mean  a  special  election;  and  an  elec 
tion  of  governor,  under  cxi-tincr  circumstances, 


would  certainly  be  a  special  election  and  for  a 
special  purpose. 

But  all  argument  'on  this  subject  would  be 
useless,  if  you  wolild  attentively  and  impar 
tially  examine  your  constitution  for  yourselves. 
Would  it  not  be  strange  absurdity,  to  say  the 
constitution  intended  that  the  lieutenant  gov 
ernor  would  go  out  of  office  whenever  the  gov 
ernor  might  die,  resign,  refuse  to  qualify,  when 
he  was  created  expressly  to  succeed  him  in  the  gov 
ernment,  on  the  happening  of  any  of  these  contin 
gencies?  If  it  did  intend  it,  why  did  it  not 
say  so?  But  can  it  be  believed  that  it  would 
create  an  officer  for  no  other  purpose,  designate 
him  as  the  successor  of  the  governor,  make  it 
necessary  that  he  should  have  the  same  quali 
fications,  be  elected  at  the  same  time,  by  the 
whole  state,  and  declare  that  he  should  go  out 
of  office  at  the  very  moment  when  it  becomes 
necessary  for  him  to  do  that  for  which  he  was 
elected,  and  which  he  is  positively  commis 
sioned  to  do? 

But  to  prove  still  more  conclusively  that  the 
lieutenant  governor  is  elected  for  four  years,  I 
would  ask  you  to  look  at  the  3d  clause  of  the 
Gth  article  of  the  constitution,  which  I  have  al 
ready  shown  you,  and  which  declares  that  the 
governor,  lieutenant  governor,  etc.,  upon  con 
viction  of  bribery  or  treating,  shall  be  disqual 
ified  from  serving  as  governor  or  lieutenant 
governor,  etc.,  for  the  term  for  which  they  shall 
have  been  elected.  What  is  meant  by  tho 
term,  for  which  the  lieutenant  governor  was 
elected?  Canyon  say  that  no  definite  time  is 
intended?  This  would  be  nonsense.  The  con 
vention,  in  the  use  of  those  words,  meant  what 
many  oilier  parts  of  that  constitution  strongly 
import,  FOUII  TKARS.  What  other  time  could 
tliev  have  alluded  to?  When  they  say  ho 
shall  be  ineligible  for  the  term  for  which  ho 
was  elected,  they  say  that  he  was  elected  for  a 
tcrm;h  must  there  fore  mean  that  he  was  elect 
ed  for  the  term  for  which  the  governor  was 
elected,  for,  if  he  were  elected  for  only  as  long 
as  the  governor  might  continue  in  office,  ho 
would  not  be  elected  for  ANY  TERM.  But  tho 
clause  to  which  we  have  just  referred  de 
nounces  a  certain  penalty  against  the  governor, 
lieutenant  governor,  and  others,  for  conviction 
of  bribery  or  treating  to  procure  their  offices; 
no  penal  law  can  be  enforced  unless  it  be  cer 
tain  and  definite — no  punishment,  which  is 
indeterminate,  can  be  inflicted.  The  conven 
tion,  I  hen,  intending  to  prevent  corruption  in 
elections,  have  described  the  penalty  which 
they  deemed  most  efficacious.  But  if  they  did 
not  intend  that  the  lieutenant  governor  should 
be  ineligible  in  case  of  conviction,  for  the  term 
of  four  years,  they  did  not  intend  that  he 
should  be  punished,  although  they  say  ex- 
pressly  that  he  shall  be.  For  how  could  sen 
tence  "be  pronounced  for  no  certain  punish 
ment?  Did  any  man  ever  hear  of  such  a  con 
demnation?  But  suppose  both  the  governor 
and  lieutenant  governor  should  be  guilty  of 
bribery  to  procure  their  election,  and  after  they 
are  both  sworn  into  office  they  are  impeached, 
and  the  governor  convicted,  he  then  is  ineligi 
ble  f'.-r  tke  term  for  which  h^  wa^electod,  that 


14 


TO    THB    PEOPLE    OF    KESTUCKt. 


is  four  years.  But  how  then  would  you  con 
vict  the  lieutenant  governor?  The  new  election 
men  tell  you  he  is  out  of  office  the  very  mo 
ment  the  governor  goes  out  of  office,  and  that 
consequently  the  time  for  which  he  was  elected 
has  expired;  you  therefore  could  not  try  him, 
nor  if  you  could,  would  you  have  any  right  to 
convict:  because  his  term  having  already 
expired  by  the  expulsion  of  the  governor,  you 
cannot  disqualify  him  from  serving  as  lieuten 
ant  governor,  if  he  should  be  immediately 
elected  again.  But  suppose  you  should  con 
vict  the  lieutenant  governor  first,  and  the  next 
ilav  convict  the  governor.  By  the  doctrine  of 
the  new  election  men,  the  governor  would  be 
punished  for  four  years,  and  the  lieutenant 
governor  only  one  day,  for  the  very  same  of 
fence',  and  this  would  not  be  the  worst,  for  on 
the  next  dav  he  would  be  eligible  to  the  office 
of  lieutenant  governor.  How  absurd  and  ri 
diculous  would  this  train  of  reasoning,  if  pur 
sued,  render  the  doctrine,  that  the  lieutenant 
governor  is  out  of  office  the  moment  the  govern 
or  may  happen  to  die,  resign,  or  be  dismissed? 
But  for  the  same  crime  the  governor  and  sena 
tors  are  disqualified  for  four  years;  and  why 
should  not  the  lieutenant  governor  be  punished 
as  severely?  Every  candid  man,  who  will  at 
tentively  examine  the  constitution,  must  see, 
beyond  a  doubt,  not  only  from  this  clause,  but 
every  other  upon  which  I  have  relied, 
and  from  their  wThole  scope  arid  design,  that 
the  lieutenant  governor  is  elected  for  four 
years. 

But  some  gentlemen,  who  acknowledge  that 
•even  after  they  had  examined  our  constitution 
^ver  and  over  again,  and  heard  all  the  speeches 
an  the  legislature,  they  were  satisfied  we  had 
TIO  right  to  elect  anew  governor,  have, "wonder- 
,ful  to  be  said,  told  us  publicly,  that  the  New 
York  constitution  has  changed  their  opinion, 
and  convinced  them  that  they  were  wrong!  It 
is  strange,  passing  strange,  that  this  argument, 
which,  when  scrutinized,  is  most  decisive 
;  against  a  new  election,  should  be  wielded  in 
favor  of  it.  And  it  is  equally  strange,  that 
Kentuckians  should  rely  on  the  legislature  of 
.New  York,  or  of  any  other  state,  for  an  exposi 
tion 'of  their  constitution.  Do  not  those  men 
who  have  used  the  decision  of  the  New  York 
legislature,  know  that  it  is  not  authority? 
They  must  admit  it  is  not.  Do  they  use  it  as 
argument?  Then,  by  a  much  more  potent  ar 
gument,  I  would  give  them  the  decision  of  our 
own  legislature,  not  on  the  New  York  Constitu 
tion,  but  our  own.  But  if  the  New  York  de 
cision  were  authority,  or  even  argument  here, 
I  would  only  ask  you  to  examine;  the  New 
York  and  Kentucky  constitutions  impartially, 
and  if  the  comparison  do  no;  furnish  you  with 
as  strong  an  argument  as  you  could  require 
against  a  new  election,  I  am  most  egregiously 
deceived. 

CONSTITUTION  OF  NEW  YORK,  SKC.  17th. — 
"And  this  convention  doth  forever,  in  the  name 
and  by  the  authority  of  this  stale,  ordain,  de 
termine,  and  declare1,  that  the  supreme  execu 
tive  power  and  authority  of  this  state  shall  be 
vested  in  a  governor;  and  statedly,  onco  in 


every  three  vears,  and  a$  often  as  the  seat  of 
government  sliall  become  vacant,  a  wise  and  dis 
creet  freeholder  of  this  state  shall  be,  by  ballot, 
elected  governor  by  the  freeholders  of  this 
state,  qualified,  as  before  described,  to  elect 
senators;  which  elections  shall  always  be  held 
at  the  times  and  places  of  choosing  represen 
tatives  in  assembly  for  each  respective  county, 
and  that  the  person  who  hath  the  greatest 
number  of  votes  within  the  state,  shall  be 
governor  thereof." 

You  now  perceive  why  the  New  York  leg 
islature  authorizes  a  new  election.  You  find 
that  the  first  clause  expressly  authorizes  and 
directs  it.  Well,  it  is  said  our's  was  tran 
scribed  from  it — what  is  the  consequence? 
The  New  York  convention  intended  that 
there  should  be  a  new  election,  and  deemed  it 
necessary  to  make  an  express  provision  fii 
their  constitution  authorizing  it.  If  our  con 
vention  intended  that  U't  should  have  a  new 
election,  why  did  they  omit  this  special 
clause  in  the  New  York  constitution?  Would 
not  the  circumstance,  that  when  copying  this 
part  of  the  constitution  of  New  York,  they 
excluded  that  expression  which  expressly  au 
thorized  a  new  election,  be  irresistible  proof 
that  our  convention  did  not  intend  that  we 
should  elect  a  governor  under  existing  (jircum- 
stauces?  In  regard  to  the  lieutenant  governor 
the  comparison  is  equally  decisive.  By  the 
New  York  constitution,  the  lieutenant  govern 
or  is  to  serve  until  the  next  election  of  gov 
ernor.  Our  constitution  says,  "until  another 
be  duly  qualified,"  which  is  not  the  language 
of  the  New  York  constitution,  but  of  the  old 
constitution  of  Kentucky.  It  is  very  clear,  if 
the  governor  of  New  York  should  die  or  re 
sign,  that  another  governor,  to  fill  his  vacan 
cy,  might  be  elected,  because  the  constitution 
savs  so;  and  it  is  equally  clear,  that  the  mo- 
nent  another  is  elected,  the  lieutenant  gover 
nor  is  out  of  office,  because  the  constitution 
says  he  shall  only  continue  in  office  until 
such  election. 

I  think  it  is  now  sufficiently  demonstrated 
that  the  lieutenant  governor,  Slaughter,  is, 
by  his  election,  in  office  for  four  years;  and  it 
cannot  be  denied  that  at  every  election  of  gov 
ernor  there  must  be  an  election  of  lieutenant 
governor.  The  inference  is  irresistible  that  a 
governor  cannot  be  elected  until  four  years 
shall  have  expired  from  the  last  election  of 
governor — in  other  words,  that  Slaughter  can 
remain  "until  a  governor  be  duly  qualified," 
which  you  noAV  see,  only  means  that  a  govern 
or  be  elected  at  the  ordinary  quadrennial 
election,  and  sworn  in  according  to  the  requi 
sitions  fit  the  constitution.  Duly  qualified 
can  import  nothing  else  than  that  he  should 
be  regularly  elected,  at  the  general  election, 
four  years  succeeding  the  last  general  elec 
tion,  in  the  manner  prescribed  by  the  consli- 
tion,  possess  all  the  qualifications,  and  take 
the  oath  which  it,  requires.  No  man  can  be 
duly  qualified  as  governor  of  this  common 
wealth  in  any  ether  way.  And  if  you  should 
ever  say  he  can,  with  that  voice,  by  which 


TO    THE    PEOPLE    OF    KENTUCKY. 


15 


consecrate   his  usurpation,  you  consign 


new — and  that  the  only  difference  is,  that  by 


you  _ 

your  constitution  to  the  GRAVE. "  the  old  constitution  the  speaker  of  the  senat 

Having  briefly  and  in  a  desultory  manner  was  to  fill  the  vacancy,  until  another  governor 
examined  all  those  parts  of  our  present  con-  should  "be  duly  qualified/'  and  by  the  new 
stitution  which  tend  to  the  elucidation  of  the  ]  the  lieutenant  governor  in  the  first  instance 
subject,  I  proposed  to  illustrate;  and  having,  I  has  that  right.  It  becomes  material  now,  to 


as  1  think,  clearly  demonstrated  that  a  new 
election  of  governor,  as  attempted,  is  not  on 
ly  unauthorized  by  that  instrument,  but  is 
palpably  inconsistent  with  many  of  its  posi 
tive  provisions,  and  in  violation  of  common 
sense  and  every  legitimate  rule  of  construc 
tion,  I  might  be  content  to  close  the  constitu 
tional  argument. 

But  before  I  leave  the  constitution,  I  must, 
for  a  moment,  place  the  subject  in  a  different 
attitude,  which  will,  I  am  sure,  confound  all 
opposition.  For  this  purpose  I  must  ask 
your  indulgence  to  go  with  me  to  the  old  con 
stitution,  and  compare  it  with  our  present  one. 
From  this  source  I  believe  you  will  be  able  to 

discover  an  argument,  that  will,  like  elec-  pointed  by  law,, for  choosing  representatives, 
tricity,  flash  conviction  on  every  mind,  and  j  elect  by  ballot,  by  a  majority  of  votes,  as  many 
one  that  will  be  completely  triumphant.  persons  as  they  are  entitled  to  have,  for  repre- 

V    sentatives  for  their  respective  counties,  to  be 


enquire  how  and  when,  bv  the  old  constitu 
tion,  the  new  governor  could  be  duly  qualified, 
to  succeed  the  ex-governor.  And  to  enable, 
us  to  do  this  satisfactorily,  it  is  only  necessary 
that  we  should  ascertain  how  and  when  sena 
tors  were  to  be  elected  by  the  first  constitution. 
For  you  must  not  forget  that  the  governor  was 
to  be  elected  in  the  same  manner  and  at  the 
same  time. 

OLD  CONSTITUTION,  ART.  1,  SEC. — "The  sen 
ate  shall  bo  chosen  in  the  following  manner: 
All  persons  qualified  to  vote  for  representa 
tives,  shall,  on  the  first  Tuesday  in  May,  in 
the  present  year,  and  on  the  same  day  in  every 
fourth  year  forever  thereafter,  at  the  place  ap 


This  process  of  argument  cannot  be  ob-  j 
jected  to,  because  it  must  and  will  convince, 
and  because  it  is  the  most  correct  and  unex 
ceptionable  kind  of  argument  on  construction. 
It  is  an  established  maxim  of  legal  construc 
tion,  that  when  any  remedial  law  is  ambigu 
ous,  or  the.  reason,  application  or  design  of  it 
uncertain,  we  should  resort  to  the  old  law,  the 
mischief  and  the  remedy. 

The  advocates  have  concentrated  all  their 
argument  on  this  ground,  to- wit,  a  compari 
son  with,  not  our  old  coustitution,  but  that  of 
New  York!  It  will  be  recollected  that  the  in 
strument  to  which  I  now  invite  vour  atten 
tion  was  our  first  constitution,  and  that  the 
one  under  which  we  now  live  is  only  an 
amendment  of  the  old  one.  It  is  fair,  there 
fore,  to  examine  the  old  constitution,  to  see  the 


respechvi 
ELECTORS  of  the  senate." 

SEC.  12.  "The  electors  of  the  senate 


shall 


meet  at  such  place  as  shall  be  appointed  for 
convening  the  legislature  on  the  3d  Tuesday 
in  May  in  the  present  year,  and  on  the  same 
day  in  every  fourth  year  thereafter." 

The  governor  was  to  be  elected  for  four 
years,  at  the  same  time  and  in  the  same  manner 
that  senators  were  elected.  Senators  were 
elected  once  in  every  four  years,  by  electors 
who  were  elected  every  four  years,  and  wero 
to  meet  once  in  every  four  years.  Hence,  it  is 
plain  that  a  governor  could  only  be  elected 
once  in  four  years.  Suppose  governor  Shelby 
(who  was  our  first  governor  under  the  old  con 
stitution)  had  resigned,  or  died  one  year  after 
he  was  installed,  or  "duly  qualified,"  upon 


provisions  therein  contained  in  regard  to  the  whom  would  the  administration  of  the  govern- 
executive  department,  ascertain  how  far  we  I  ment  have  devolved?  You  will  answer,  the 
then  had,  or  whether  we  had  at  all  the  right  j  speaker  of  the  senate.  Weil,  how  long  would 
of  electing  a  governor  to  fill  a  casual  vacancy  j  he  have  had  a  right  to  the  office  and  emolu- 
before  the  expiration  of  the  constitutional  term,  ments  of  governor?  You  will  reply,  until  *  'an- 
and  whether  any,  and  what  changes  or  amend- '  other  governor  shall  have  been  duly  qualified." 
ments  are  to  be  found  in  the  new  constitution.  But  now  ask  yourselves  the  important  ques 
tion,  when  could  this  new  governor  be  "duly 


OLD  CONSTITUTION,  ART.  2,  SEC.  2. — "The 
governor  shall  be  chosen  by  the  electors  of  the 
senate,  at  the  same  time,  at  the  same  place,  and 
in  the  same  manner." 

SEC.  3.  "The  governor  shall  hold  his  office 
during  four  years." 

SEC;  15.  "In  case  of  the  death  or  resignation 
of  the  governor,  or  of  his  removal  from  office, 
the  speaker  of  the  senate  shall  exercise  the  of 
fice  of  governor,  until  another  shall  be  duly 
qualified." 

It  will  be  recollected  that  under  this  consti 
tution  there  was  no  lieutenant  governor,  and 
we  see  from  the  foregoing  extracts  how  the 
governor  was  to  be  elected,  the  duration  of  his 
office,  and  how  vacancies  that  might  happen 
in  his  office  by  death,  resignation,  or  removal, 
were  to  be  filled.  You  see  that  the  language 
of  the  old  constitution,  "until  another  be  duly 
qualified,"  i«  precisely  thv  «arne  used  in  the 


qualified?"  The  solution  is  given  by  the  con 
stitution.  He  could  not  be  constitutionally 
elected  until  four  years  succeeding  the  elec 
tion  of  the  former  governor',  Shelby.  If  he 
could,  I  should  be  gratified  to  know  when. 
Could  he  have  been  elected  in  any  other  way 
than  by  electors  of  the  senate?  No.  Could  they 
be  elected,  or  hold  their  electorial  meeting 


more  than  once  in  four  ye 


Most  certainly 


not.  But  it  may  be  said  by  some  of  the  new- 
election  sophists,  that  the  constitution  only 
declares  they  shall  be  elected  once  in  every 
four  years,  and  shall  meet  to  vote  once  in  every 
four  years,  but  does  not  prohibit  their  election 
and  convention  oftener  if  any  exigency  should 
require  it.  I  might  admit,  that  if  the  provis 
ions  made  in  the  constitution  to  fill  the  vacan 
cy  in  the  office  of  governor  .should  happen  to 
fail,  then,  to  prevent  anarchy  and  a  dissolution 


TO    THE    PEOPLE    OF    KENTUCKY. 


of  the  government,  we  would  have  a  right,  to 
till  the  vacancy  when  and  how  we  might  think 
lit — because  the  power  would,  in  that  event, 
rfvert  to  us.  But  this  lias  no  concern  with  the 
present  question.  In  the  one  proposed,  the 
people  of  Kentucky  would  not  have  had  a 
right  to  elect  a  governor  in  any  other  manner 
or  at  any  other  time  than  that  prescribed  by 


years  after  the  former  election,  and  taken  the 
requisite  oath.  If  the  new  convention  used 
the  same  words  without  any  other  explanation 
or  restriction,  did  they  not  intend  that  they 
should  convey  the  same  meaning?  You  find 
that  the  only  difference  between  the  two  con 
stitutions,  in  case  of  vacancy  in  the  office  of 
governor  is,  that  in  the  first,  the  speaker  of  the 


the  constitution.     For  see  the  absurdity  of  a  senate  should  administer  the  government  until 

contrary  doctrine.     Suppose  (governor  Shelby   another  be  duly  qualified — and  in  the  last,  the 
having  resigned  three  years  before  theexpira-   lieutenant  governor  should  administer  the  gov- 

;.  i     •  T          -i          i      •  ..^"V'l     ,,A!_ 1_  _     .!_.!  1  •  t*        i 


tion  of  his  term,)  that  the  people  had  immedi 
ately  elected  electors,  and  that  they  had 
forthwith,  or  at  anytime  before  the  expiration 
of  the  term,  elected  a  governor — would  thev 
have  had  a  right  to  elect  senators  at  the  saine 
time?  They  had  not.  Would  they  have 
elected  a  governor  for  the  remnant  of  Shel 
by's  term?  They  could  not,  for  the  constitution 
is  imperative  that  he  shall  be  elected  for  four 
years.  Could  they  have  elected  him  for  four 
years?  You  must  instantly  perceive  that  they 
could  not. — for  the  constitution  is  express  and 
positive  that  the  electors  of  the  senate  shall 
elect  senators  and  a  governor  once  in  every  four 
years.  But  this  they  could  not  do,  if  this  spe 
cial  board  of  electors  just  mentioned  had  a 


members    of   the    convention    had 
the  old  constitution  was  defective  in 


eminent  until  another  be  duly  qualified. 

If 

thorn 

its  provisions  for  filling  a  vacancy  in  the  office 
of  governor  in  any  other  respect,  why  did  they 
not  change  those  provisions?  We  find  that 
they  have  materially  altered  the  old  constitu 
tion  in  other  respects.  They  have  even 
changed  the  mode  in  which  the  governor  shall 
be  elected,  giving  the  qualified  voters,  instead 
of  electors  of  the  senate,  that  right.  They  have 
created  a  lieutenant  governor  for  the  sole  pur 
pose  of  administering  the  government,  instead 
of  the  speaker  of  the  senate.  They  have  ex 
tended  the  enumeration  of  instances  in  which 


he   shall  act    as    governor.     Wh 


then,   did 
far  as 


right  to  elect  a  governor  for   four  years,  after  they  not  change  the  old  constitution,  so  fa 

l  \voyears  of  Shelby's  term  had  expired,  and   it  had  fixed   the  time  when  a  new  governor 

should  be  duly  qualified?     The  answer  is  ob- 


pu^d, 

had  actually  elected  one  for  that  period — for 
the  term  of  this  new  governor  would  extend 
two  years  beyond  the  time,  when  electors  of 
the  senate  are  commanded  to  elect  a  governor; 
therefore  either  they  must  not  IK-  permitted  to 
obey  and  support  the  constitution,  or  the  spe 
cial  electors,  unknown  to  the  constitution,  had 
not  the  right  to  elect.  This  being  the  alterna 
tive,  no  honest  man,  however  skeptical,  can 
possibly  hesitate.  I  think  this  view  of  the 
subject  demonstrates,  beyond  a  doubt,  that  un 
der  the  old  constitution,  a  new  governor  could 
not  have  been  "duly  qualified"  until  the  expi 
ration  of  the  term,  for  which  his  predecessor 
was  elected,  and  that  consequently  the  func 
tions,  power,  prerogatives  and  emoluments  of 
governor  devolved  on  the  speaker  of  the  sen 
ate,  in  case  of  the  death  or  resignation  of  the 
governor,  for  the  remainder  of  that  term. 

Those,  then,  are  the  provisions,  and  this  the 
doctrine  of  the  old  constitution.  After  a  few 
years'  experiment,  it  was  in  some  respects 
found  to  be  defective.  To  amend  it  and  make 
it  more  perfect,  a  convention  was  called,  and 
assembled  in  179$.  In  some  of  the  prominent 
features  of  the  old  constitution  they  made  a 
radical  change,  and  in  August,  1799,  adopted, 
as  an  amendment  or  substitute,  that  master 
piece  of  political  architecture,  our  present  con 
stitution.  But  in  relation  to  the  executive  de 
partment,  and  the  mode  of  filling  vacancies 
that  might  occur  in  it,  what  have  they  done? 
They  knew  well  the  provisions  of  the  old  con 
stitution  on  this  subject,  and  their  inevitable 
construction.  Have  they  changed  them?  So 
far  as  regards  our  present  enquiry,  they  have 
not,  but  confirmed  and  re-adopted  them.  In 
the  old  constitution,  the  expression,  "until  fin- 
other  be  duly  qualified"  meant,  until  he  should 


viou 
auth 


s — they  did  not  think  good  policy  won 
orize  it.     Thev  very  wisely   believed  th 


Id 
that 


the  remedy  would  be  worse  than  the  disease. 
Instead  of  changing  the  time  of  election,  they 
have  only  altered  the  manner— instead  of  au 
thorizing  a  special  election  of  a  new  governor, 
thev  have  doubly  increased  the  obstacles  to  it, 
and  the  number  of  persons  who  may  fill  any 
vacancy  that  may  occur,  by  making  more  and 
wiser  provisions  for  that  purpose.  And  now 
you  may  see  a  complete  explication  of  the 
reasons  why,  and  the  purpose  for  which  a  lieu 
tenant  governor  was  created.  It  was  thought 
as  the  speaker  of  the  senate  might  fre 
quently  be  a  very  weak  man,  totally  unfit  for 
the  office  of  governor,  and  Avas  not  the  choice  of 
the  state,  that  it  would  be  unwise  and  unsafe 
to  confide  the  administration  of  the  govern 
ment  to  him  for  so  long  a  time  as  two  or 
three  years,  if  it  could  be  conveniently  avoid 
ed. 

The  convention  determined  that,  when  a 
governor  should  be  elected,  a  lieutenant  gov 
ernor  should  also  be  elected,  in  the  same  way 
and  possessingthe  same  qualifications,  for  the 
purpose  of  succeeding  him  in  office,  in  case  he 
should  vacate  it  any  time  before  the  expiration 
of  his  term  of  service,  or  be  suspended  from 
the  exercise  of  its  functions  by  impeachment  or 
absence  from  the  state.  They  knew  from  ex 
perience,  the  school  of  wisdom,  that  a  too  fre 
quent  recurrence  to  popular  elections  for  the 
first  office,  under  the  government  would  be 
dangerous  and  mischievous.  They  deter 
mined  that  once  in  four  years  would  be  as  of 
ten  as  the  harmony  of  the  country  and  the  sta 
bility  of  the  government  would  warrant  the 
Itction  of  governor,  and  to  prevent  any  mis- 


d  bv  electors  of  the  senate  four  chief  that  might  result  from  an  election    at 


TO    IKE   PEOPLE   OF    KENTUCKY. 


17 


shorter  period,  the  old  convention  provided 
who  should  be  governor,  or  in  case  the  governor 
elect  should  vacate  his  office.  The  new  con 
vention,  influenced  by  the  same  motives,  have 
not  only  ratified  this  policy,  but  through 
abundant  caution,  have  made  the  succession 
more  secure,  more  perfect  and  more  satisfacto 
ry.  They  have  designated  the  lieutenant  gov 
ernor  (whom  they  created  for  that  special  pur 
pose,  and  no  other)  in  the  first  place,  and  then 
in  the  case  of  casualty,  the  speaker  of  the  senate. 
Hence  they  required  that  a  secondary  officer 
should  be  elected  with  the  first,  in  the  same 
manner  and  possessing  the  same  qualifications 
—that  if  by  any  accident  we  should  lose  our 
governor,  his  functions  shall  devolve  on  and 
be  discharged  by  a  man  of  our  own  choice, 
whom  we  have  elected  for  that  veiy  purpose, 
knowing  at  the  time  we  elected  him  that  he 
might  be  called  to  the  executive  chair.  It 
would  be  ridiculously  absurd  to  say  that  the 
lieutenant  governor  was  created  for  any  other 
purpose,  even  to  be  speaker  of  the  senate.  The 
constitution  itself  is  decisive.  It  says,  "the 
lieutenant  governor  shall,  by  virtue  of  his  of- 
^ce,"be  speaker  of  the  senate, 

From  this  concise  and  hasty  view  of  the  two 
constitutions,  I  presume  no  man  can  doubt 
what  the  convention  intended  when  they  used 
the  expression,  "until  another  be  duly  quali 
fied  ."  For  it  must  mean  in  the  new  constitu 
tion  what  it  did  in  the  old,  the  new  being  only 
a  continuance  of  the  old,  and  in  the  same  lan 
guage;  and  that  the  present  incumbent,  Gabri 
el  Slaughter,  has  a  constitutional  right  to  the 
office  'which  he  now  fills,  until  the  expiration 
of  the  term  for  which  Madison  was  elected,  and 
until  another  governor  be  constitutionally 
elected,  constitutionally  qualified,  and  consti 
tutionally  sworn  into  office — that  is,  "until  an 
other  be  duly  qualified" — which  means,  quali 
fied  according  to  and  in  pursuance  of  the  con 
stitution.  If  further  argument  could  be  ne 
cessary  for  any  capacity,  I  might  refer  you  to 
the  constitutions  of  some  of  our  sister  states, 
adopted  before  ours,  in  which  the  same  ex 
pression,  "until  another  be  duly  qualified,"  is 
used,  and  from  which  it  is  clear  that  a  new 
election  to  fill  a  vacancy  in  the  executive  office 
was  unauthorized  and  unnecessary.  Indeed, 
if  it  were  necessary,  and  time  would  permit, 
the  subject  might  be  pursued  to  almost  mathe 
matical  demonstration. 

As  the  only  object  of  the  new  convention 
was  to  amend  the  old  constitution  where  they 
should  deem  it  defective,  is  it  not  clear,  that  if 
they  had  believed  that  it  was  defective,  be 
cause  it  did  not  authorize  an  election  to  fill  a 
vacancy  in  the  office  of  governor  until  the  ex 
piration  of  four  years,  and  because  it  confided 
the  helm  of  state  to  a  mere  speaker  of  the 
senate,  elected  by  only  about  one  twentieth  of 
the  state,  they  would  have  amended  it,  so  as 
to  authorize  such  election  after  the  adoption  of 
the  new  constitution?  But  instead  of  this, 
they  have  only  changed  the  right  of  election 
from  electors  elected  by  the  people,  and  given 
it  to  the  people  themselves.  They  have  said 
that  tee  shall  exorcise  the  right  personally,  and 


not  representatively  or  by  proxy;  and  that  a 
lieutenant  governor,  whom  we  shall  elect  for 
no  other  purpose,  shall,  in  case  of  a  vacancy  in 
the  office  of  governor,  act  as  governor,  instead 
of  the  speaker  of  the  senate,  in  the  old  consti 
tution.  Therefore,  if  under  the  old  constitu 
tion  we  had  not  a  right  to  elect,  much  stronger 
are  the  reasons  why  we  cannot  now. 

But  it  is  said  by  the  advocates  of  a  new  elec 
tion,  "that  it  would  be  anti-republican,  contra 
ry  to  the  spirit  and  genius  of  our  government  to 
submit  to  be  governed  by  a  mere  subaltern." 
This,  you  may  perceive,  is  done  to  excite  feel 
ing  and  prejudice,  and  drown  reason.  Those 
gentlemen  must  certainly  have  sense  enough  to 
know  that  this  slang  is  not  to  be  taken  for  ar 
gument,  and  that  intelligent  men  will  not  be 
seduced  by  it.  But,  in  all  their  argument, 
they  have  never  once  drawn  their  reasoning 
from  the  constitution,  but  have  invariably  gone 
behind  it,  to  a  period  when  we  were  in  a  state 
of  nature,  and  were  not  fettered  by  what  they 
would  call  constitutional  chains.  It  is  not 
proper  to  ask  us  w hat  we  may  like  or  dislike, 
or  what,  if  we  had  the  power,  we  would  do — 
they  should  show  us  what  we  may  do  and 
what  we  must  do.  But  this  doctrine  they  will 
please  to  call  anti-republican,  because  it  does 
not  permit  us  to  do  whatever  we  please. — 
Therefore  they  say  that  we  ought  not  to  sub 
mit  to  the  government  of  the  lieutenant  gover 
nor.  And  how  do  they  attempt  to  j>rove  it? 
Not  by  the  constitution — not  by  shewing  us 
that  the  constitution  does  not  give  him  tho 
right  to  govern  us,  but  by  telling  us  that  if  wo 
suffer  it,  we  are  resigning  our  liberty,  (that  is, 
of  doing  what  we  please,  right  or  wrong)  and 
tamely  renouncing  the  elective  franchise.  la 
not  this  most  ridiculous  argument?  They 
know  well  that  we  have  surrendered  this  right 
to  a  certain  extent,  by  our  social  compact,  and 
that  we  cannot  exercise  it  except  when  and  in 
the  manner  .that  compact  will  authorize. 
We  have  surrendered  it  on  the  altar  of  tho 
common  good,  by  that  great,  and  solemn,  and 
sovereign  Fiat,  which  no  human  legislature 
can  repeal.  But  if  this  appeal  to  the  selfish 
bias  of  our  nature  were  an  apposite  argument, 
how  easily  is  it  refuted?  Was  it  not  equally 
liard,  and  equally  subversive  of  what  some 
men  call  our  rights,  to  compel  us  to  be  ruled 
(as  the  old  constitution  did)  by  a  man  who 
was  only  elected  as  a  senator  by  perhaps  ono 
county?  Certainly,  and  much  more  so;  for 
now  we  have  a  man  who  was  our  choice,  in 
whom  we  reposed  confidence,  and  whom  we 
elected  for  the  purpose  of  filling  the  vacancy 
tie  now  fills;  and  whether  it  be  hard  or  soft, 
necessary  or  unnecessary,  is  immaterial.  It  is 
enough  that  we  have,  by  the  most  solemn  act 
we  have  ever  done,  and  I  believe  as  \yise  an 
one,  said  it  should  be  so;  we  elected  him  vol- 
.mtarily,  knowing  that  he  might  become  our 
governor  if  a  certain  contingency  should  hap 
pen — it  has  happened — and  he  thereby  becomes 
T,S  much  our  governor  as  if  we  had  chosen  him 
instead  of  the  lamented  Madison.  By  the 
death  of  Madison,  he,  to-wit,  Slaughter,  has  .1 
rested  right  to  all  the  honor,  power,  and  profit 


18 


TO   THE    PEOPLE    OF    KENTUCKY. 


appertaining  to  the  office  of  governor;  we  liavc 
given  it  to  him  by  our  voices  in  the  convention, 
and  at  his  election,  and  have  no  right  to  take 
it  away  without  his  consent. 

It  has  also  been  said  by  some,  that  Slaughter 
has  not  a  right  to  administer  the  government 
until  the  expiration  of  the  term  for  which  he 
was  elected,  because  he  would  still  be  eligible 
to  the  office  of  governor,  which  would  be  con 
trary  to  the  spirit  of  the  constitution,  which 
declares  that  the  governor  shall  not  be  re-eli 
gible  to  the  office  of  governor  for  seven  years 
after  the  expiration  of  the  term  for  which  he 
was  elected.     This  is  so  futile   an  argument 
that  I  shall  only  refer  you  to  the  3d  article  and 
8th  clause  of  the  constitution  to  prove  its  falla 
cy.     By  that  clause,  the  lieutenant  governor, 
in  case  the  governor  shall  be  absent  from  the 
etate,  shall  administer  the  government  until  his 
return,  or  another  be  duly  qualified.     Suppose 
he  should  not  return  until  the  expiration  of  the 
term  for  which  he  was  elected,  would  not  the 
lieutenant  governor  have  a  right  to  his  office  the 
•whole    of   that    time?     Certainly    he  would. 
Would  that  make  him  ineligible  to  the  office  of 
governor  at  the  next  election?    It  would  not. 
This  argument  also  is  then  prostrated.    I  will 
not  pretend  to  answer  the  arguments  in  detail 
that  have  been  used.— they  are  all  completely 
answered.     I   will  not  fatigue  your  patience 
nor  insult  your  understanding  by  detaining 
you  with  further  argument  to  prove  that  which 
is  almost  as   self-evident    as    that    you  have 
noses  on  your  faces,  and  which,  if  proof  were 
necessary,  has  been  abundantly,  and  I  believe 
unanswerably   demonstrated,  to  the  satisfac 
tion  and  conviction  of  every  impartial  mind. 
I  might  say  much  more  on  this  subject,  but  I 
have  said   more  already  than  I  would  have 
desired,  if  the  nature  of  the  subject  would  have 
permitted  less.     The  constitution  is  sufficient 
ly  plain  on  its  face,  but  the  ingenuity  of  man 
can  distort  and  disguise,  by  subtle  sophistry, 
the  most  self-evident  truth.     This  has  been  the 
object  of  the  advocates  of  a  new  election.     To 
-aid  in  an  honest  endeavor  to  defeat  their  mach 
inations,   and  arrest  the  further  extension  ol 
their  erroneous  and  mischievous  doctrines,  was 
the  only  motive  that  prompted  this  address 
And  I  think  I  have  shewn  clearly  that  we  have 
not  a  right  to  elect  a   governor  to  supply  the 
vacancy  occasioned  by  Madison's  death — by 
proving,  in  the  first  place,  from  the  provisions 
in  the  constitution,  that  the  convention  did  no 
intend  that  there  should  be  such  election ;  ii 
the  second  place,  that  at  every  election  for  gov 
<5rnor  there  should  be  an  election  for  lieutenan 
governor,  and  that  the  lieutenant  governor  is 
elected  for  four  years,  and  that  consequently 
we  cannot  now  elect  another  in  his  place.    Ant 
the  latter  proposition  I  think  I  have  abundant 
ly  supported,  not  only  from  our  own,  but  als< 
from  tne  constitution  of  New  York,  and   th 
old  CONSTITUTION,  from  which  the  NEW 
wae  copied,  and  not  as  alleged  from  that  o 
New  \ork.    I  think  no  man  will  now  feel  «• 
doubt;  but  I  do  not  expect  that  those  who  hav 
written  in  the  newspapers,  and  made  stum] 
f-pcwhee  in  favor  of  a  new  election,  will  changi 


leir  course;  for  it  cannot  bo   expected  thai 
icii  who  publish  to  the  world  opinions,  for 
hich  they  are  not  able  to  give  one  good  rea- 
on,  and  whose  exaltation  into  notice  and  of- 
.ce  depends  solely    on  the   success   of    their 
pinions,  will  ever  change  their  conduct  until 
lieir  dispositions  and  tempers  be  radically  al- 
ered.     To   those  men  I  did  not  address  my- 
elf  with  any  hope  of  success;  but  it  is  to  you 
ho  may  have  been  innocently  seduced   by 
heir  artifice,  and  deluded  by  the  confidence 
ou  reposed  in  their  intelligence  and  candor, 
without  examining  the  constitution,  and  who 
"  ave  no  interest  or  disposition  to  violate  it; 
ou,  the  honest  yeomanry  of  the  country,  who 
re  the  stay  and  hope  of  the  government,  and 
who  will  spill  your  blood  in  defence  of  your 
onstitutional  liberty.     Examine  honestly,   I 
onjure  you,  the  conduct  of  those  prominent 
men  who    advocate  a  new   election;  observe 
heir  situations  and  their  motions,  look  at  their 
irgurnents,  and  ask  yourselves,  in  the  honesty 
)f  your  hearts,  why  all  this  parade,  this  zeal 
and  fermentation?     Is  it  because   those  men 
ove  their  country  more  than  their  countrymen 
do? — because  they  are  disinterestedly  and  exclu 
sively  our  friends,  or  because  they  wish  to  do 
us  a  service?     Or  is  it  not  more  because  they 
ove  themselves,  and  wish  to  climb   into  office 
and  power  by  exciting  our  prejudices  and  our 
iears?    Do  they  furnish  any  evidence  of  their 
.ove  for  us,  or  regard  for  our  interest,  peace  or 
lappiness,  when,  without  any    good    cause, 
they  attempt  to  excite  tumult  and  commotion., 
destroy  the  harmony  of  the  country,  and  bring 
on  all  the  horrors  of  a  civil  war?    And  for 
what  is  this  to  be  done?    To  preserve  our  con 
stitution?    No;  to  sacrifice  it.    Is  it  to  promote 
our  interest  or  happiness?    This  cannot  be. 

But  an  attempt  has  been  made  to  lull  our  ap 
prehensions.  We  have  been  gravely  told  that 
there  is  no  danger  of  confusion,  •  anarchy,  or 
civil  strife.  This  is  the  language  of  all  revo 
lutionists.  Can  you  believe  it?  Suppose  yon 
elect  an  other  governor  to  supersede  Slaughter, 
will  he  give  up  the  administration  of  the  gov 
ernment?  Surely  if  he  be  a  firm  and  honest 
man,  determined  to  do  his  duty,  and  save  the 
constitution  from  violence,  and  his  country 
from  ruin  and  disgrace,  he  will  defend  them 
to  the  last.  If  he  would  tamely  submit,  he 
would  treacherously  surrender  them — he 
would  be  a  pusillanimous  and  unfaithful  sen 
tinel.  He  is  not  such  a  man.  But  suppose  he 
should  be  frightened  or  forced  out  of  his  duty, 
would  you  say  there  was  no  commotion,  no  vi 
olence?  And  what  further  would  be  the  conse 
quence?  Those  who  do  not  believe  that  the 
constitution  warrants  an  election,  would  not 
submit  to  any  law  signed  by  the  new  gover 
nor.  How  would  you  force  obedience?  Woukl 
not  this  be  anarchy?  But  then  the  courts,  the 
last  anchor  of  safety,  would  be  appealed  to; 
some  might  decide  one  way  through  fear, 
others  differently  from  a  sense  of  duty.  But, 
do  you  believe  the  Court  of  Appeals,  sworn  tso 
support  the  constitution,  would  surrender  it? 
But  we  are  boldly  told,  that  they  dare  not  re 
fuse!!  Oh!  my  c wintry,  artthou,  with  all  thy 


TO    THE   PEOPLE    OF    KENTUCKY. 


noblo  and  exalted  destinies,  quivering  on  tins 
awful  precipice!  Have  we  come  to  this,  that 
a  few  men  may  sack  the  constitution  when 
they  please,  with  impunity?  The  advocates 
of  a  new  election  admit  that  we  have  not  a 
right  to  change  the  constitution  in  any  other 
way  than  that  therein  prescribed,  but  some  of 
them  still  have  the  effrontery'  to  say,  that  we 
can  force  the  courts  to  give  it  what  construc 
tion  we  please.  What  is  this  but  repealing  it? 
Are  we  not  constrained  to  fear  that  any  man 
who  will  endeavor  to  make  us  believe  such 
doctrines,  would  prostrate  our  liberties  that  he 
might  rise  on  their  ruins?  Will  you  then,  peo- 
le  of  Kentucky,  permit  yourselves  to  be 
uped  and  cheated  out  of  your  constitution  by 
those  candidates  for  power?  Are  you  not  free 
men?  Then  think  for  yourselves,  and  act 
like  men  who  deserve  to  be  free;  act  coolly,  de 
liberately,  and  wisely.  I  do  not  ask  you  to 


I 


office  under  the  state  government,  yet  I  do 
feel  a  deep  interest  in  Kentucky's  welfare  and 
repose;  it  is  the  place  of  my  birth  and  my 
home. 

If  any  thing  I  have  said,  or  any  position  I 
have  taken  be  doubtful,  I  only  ask  you  to  ex 
amine  the  constitution  over  and  over  again  un 
til  you  shall  become  completely  satisfied.  But 
if  it  be  possible  you  can  still  doubt,  pursue  the 
course  dictated  by  your  interest  and  safety. 
Recollect  that  if  it  even  be  doubtful,  whether 
you  have  the  right  to  elect  a  governor,  to  fill 
the  vacancy  occasioned  by  Madison's  death, 
you  cannot  violate  the  constitution  by  a  sub 
mission  to  the  prcxei;.!.  state  of  things,  but  that 
you  may  destroy  it,  and  with  it  your  peace  and 
happiness,  :  _ n.-izarding  an  unnecessary  elec 
tion.  Spoil  not  with  this  sacred  instrument, 
I  beseech  you.  It  is  your  interest  and  duty, 
not  only  to  yourselves,  but  to  your  childre 


believe  what  I  have  said,  because  I  have  an  |  and  your  children's  children,"  to  defend  it 
interest  in  the  welfare  of  my  country,  and  none  (even  "against  the  slightest  encroachment, 
in  erring  on  the  question  I  undertake  to  dis-  j  This  is  the  only  way  to  preserve  your  liberties, 
•cuss;  but  because  I  have  addressed  you  in  the  J  and  transmit  them  unimpaired  to  your  poster- 


language  of  truth  and  honest  sincerity;  for  al-  j  ity. 
t-kough  I  do  not,  nor  never  expect  to  hold  any ' 


AKEITT 


AN, 


PRELECTION, 


On  the  16th  of  December,  1818,  on  the  motion  of  Mr.  Robertson,  of  Kentucky, 
a  select  committee,  consisting  of  Mr.  Robertson,  Mr.  Beecher,  of  Ohio,  and  Mr. 
Jones,  of  Tennessee,  was  appointed  to  inquire  into  the  expediency  of  organizing 
a  separate  territorial  government,  in  that  portion  of  the  then  territory  of  Missouri, 
lying  south  of  36:30°  north  latitude.  On  the  21st  of  the  same  month,  Mr. 
Robertson  reported  to  the  House  of  Representatives  of  the  United  States  the 
Bill,  as  it  finally  passed.  On  the  1 8th  of  February,  1819,  the  following  amend 
ment  was  offered,  in  the  committee  of  the  whole,  by  John  W.  Taylor,  of  New 
York: 

•'And  be  it  Jurther  enacted,  That  neither  slavery  nor  involuntary  servitude 
shall  be  introduced  into  the  said  territory,  otherwise  than  for  the  punishment  of 
crimes,  whereby  the  party  shall  have  been  lawfully  convicted.  And  all  children 
born  of  slaves  within  the  said  territory  shall  be  free,  but  may  be  held  to  service  un 
til  the  age  of  25  years." 

This  was  a  year  before  the  agitation  of  the  "Missouri  Controversy"  and  may 
be  deemed  the  origin  of  what  has  since  been  called  "the  Wilmot  Proviso" 

On  that  proposition  the  following  speech  was  made.  The  proposed  amend 
ment  having  been  rejected  by  the  committee  of  the  whole,  Mr.  Taylor  renewed  it 
in  the  House,  which  also  rejected  it  by  the  following  vote: 

Yeas — Messrs.  Adams,  Allen,  of  Mass.,  Anderson,  of  Pa.,  Barber,  of  Ohio, 
Bateman,  Bennett,  Boden,  Boss,  Comstock,  Crafts,  Cushman,  Darlington,  Drake, 
Folger,  Fuller,  Hall,  of  Del.,  Hasbrouck,  Hendricks,  Herrick,  Hiester,  Hitchcock, 
Hostetter,  Hubbard,  Hunter,  Huntington,  Irving,  of  N.  Y.,  Lawyer,  Lincoln, 
Linn,  Livermore,  W.  Maclay,  W.  P.  Maclay,  Marchand,  Mason,  ofR.  I.,  Merrill, 
Robert  Moore,  Samuel  Moore,  Morton,  Moseley,  Murray,  Jer.  Nelson,  Ogle,  Orr, 
Palmer,  Petterson,  Pawling,  Rice,  Rich,  Richards,  Rogers,  Ruggles,  Sampson, 
Savage,  Scudder,  Seybert,  Sherwood,  Southward,  Spencer,  Tallmadge,  Tarr, 
Taylor,  Terry,  Tompkins,  Townsend,  Wallace,  Wendover,  Whiteside,  Williams, 
of  Conn.,  Williams,  of  N.  Y.,  Wilson,  of  Pa.— 70. 

Nays — Messrs.  Anderson,  of  Kentucky,  Austin, Ball,  Barbour,  of  Va.,  Bassett, 
Bayley,  Beecher,  Bloomfield,  Blount,  Bryan,  Burwell,  Butler,  of  La.,  Cobb, 
Cook,  Crawford,  Culbreth,  Desha,  Earl,  Edwards,  Garnett,  Hall,  of  N.  C.,  Harri 
son,  Hogg,  Holmes,  Johnson,  of  Va.,  Johnson,  of  Ky.,  Jones,  Kinsey,  Lewis, 
Little,  Lowndes,  M'Lane,  of  Del.,  M'Lean,  of  111.,  M'Coy,  Marr,  Mason,  of 
Mass.,'  H.  Nelson,  T.  M.  Nelson,  New,  Newton,  Ogden,  Owen,  Parrott,  Pe- 
gram,  Peter,  Pindall,  Pleasants,  Porter,  Quarles,  Reed,  of  Ga.,  Rhea,  Robertson, 
Sawyer,  Settle,  Shaw,  Simpkins,  Slocumb,  S.  Smith,  Alex.  Smyth,  J,  S.  Smith, 
Speed,  Stewart,  of  N.  C.,  Storrs,  Stuart,  of  Md.,  Terrell,  Trimble,  Tucker,  of 
Va.,  Tucker,  of  S.  C.,  Tyler,  Walker,  ofN.  C.,  Williams,  of  N.  C.— 71. 

Mr.  T.  then  moved  so  much  of  said  amendment  as  related  prospectively  to  the 
issue  of  slaves,  and  that  was  adopted  by  the  following  vote: 

Yeas — Messrs.  Adams,  Anderson,  of  Pa.,  Barber,  of  Ohio,  Bateman,  Bennett, 
Boden,  Boss,  Comstock.  Crafts,  Cushman,  Darlington,  Drake,  Ellicott,  Folger, 
Fuller,  Gilbert,  Hall,  of  Del.,  Hasbrouck,  Hendricks,  Herrick,  Hiester,  Hitchcock, 
Hostetter,  Hubbard,  Hunter,  Huntington,  Irving,  of  N.  Y.,  Kirtland,  Lawyer, 
Lincoln,  Linn,  hivermore,  W.  Maclay,  W.  P.  Maclay,  Marchand,  Merrill,  Mills, 
Robt.  Moore,  Samuel  Moore,  Morton,  Moseley,  Murray,  Jer.  Nelson,  Ogle,  Orr, 
Palmer,  Patterson,  Pawling,  Rice,  Rich,  Richards,  Rogers,  Ruggles,  Sampson, 
Savage,  Schuyler,  Scudder.  Seybert,  Sherwood.  Southward,  Spencer,  Tallmadge, 


2SJ  PEELECTION. 

Tarr,  Taylor,  Terry,  Tompkins,  Townsend,  Wallace,  Wendover,  Westerlo,  Whits- 
side,  Williams,  of  Con.,  Williams,  of  N.  C.,  Williams,  of  N.  Y.,  Wilson,  of  Pa. 
—75. 

Nays — Messrs.  Abbott,  Anderson,  of  Ky.,  Austin,  Ball,  Barbour,  of  Va.,  Bas 
sett,  Bayley,  Beecher,  Bloomfield,  Blount,  Bryan,  Burwell,  Butler,  of  La.,  Cobb, 
Cook,  Crawford,  Cruger,  Culbreth,  Desha,  Earl,  Edwards,  Garnett,  Hall,  N.  C., 
Harrison,  Hogg,  Holmes,  Johnson  of  Va.,  Johnson,  of  Ky.,  Jones,  Kinsey,  Lew 
is,  Little  Lowndes,  M'Lane,  of  Del.,  McLean,  of  111.,  M'Coy,  Marr,  Mason,  of 
Mass.,  Middleton,  H.  Nelson,  T.  M.  Nelson,  Nesbitt,  New,  Ogden,  Owen,  Par- 
rott,  Pegram,  Peter,  Pindall,  Pleasant,  Quarles,  Keed,  of  Md.,  Reed,  of  Ga.,Rhea, 
Robertson,  Sawyer,  Settle,  Shaw,  Simkins,  Slocumb,  S.  Smith,  Alex,  Smyth,  J. 
S.  Smith,  Speed,  Stwart,  of  N.  C.,  Storrs,  Stuart,  of  Md,  Terrell,  Trimble,  Tuck 
er,  of  Va.,  Tucker,  of  S.  C.,  Tyler,  Walker,  of  N.  C.— 73. 

On  the  next  day  Mr.  Robertson  moved  a  reference  of  the  Bill  to  a  select  com 
mittee,  with  instructions  to  strike  out  of  the  1st  section  thereof  the  following 
words:  "And  all  children  born  of  slaves  within  the  said  territory  shall  be  free,  but 
maybe  held  to  service  until  the  aye  oj  twenty -five  years  " 

Which  motion  prevailed  by  the  following  vote: 

Yeas — Messrs.  Abbott,  Anderson,  of  Ky.,  Austin,  Baldwin,  Ball,  Barbour,  of 
Va.,  Bassett,  Bayley,  Beecher,  Bloomfield,  Blount,  Bryan,  Butler,  of  La.,  Camp 
bell,  Cobb,  Colston,  Cook,  Crawford,  Cruger,  Davidson,  Desha,  Earl,  Edwards, 
Ervin,  of  S.  C.,  Fisher,  Floyd,  Garnett,  Hall,  of  N.  C.,  Harrison,  Hogg,  Holmes, 
Johnson,  of  Va.,  Johnson,  of  Kentucky,  Jones,  Kinsey,  Lewis,  Little,  Lowndes, 
M'Larie,  of  Del.,  McLean,  of  111.,  McCoy,  Marr,  Mason,  of  Mass.,  Mercer,  Mid 
dleton,  H.  Nelson,  T.  M.  Nelson,  Nesbitt,  New,  Newton,  Ogden,  Owen,  Parrott, 
Pegram,  Peter,  Pindall,  Pleasants,  Poindexter,  Quarles,  Reed,  of  Md.,Reed,  of 
Ga.,  Rhea,  Ringgold,  Robertson,  Sawyer,  Settle,  Shaw,  Simkins,  Slocumb,  S. 
Smith,  Bal.  Smith,  Alex.  Smith,  J.  S.  Smith,  Speed,  Stewart,  of  N.  C.,  Storrs, 
Strother,  Stuart,  of  Md.,  Terrell,  Trimble,  Tucker,  of  Va.,  Tucker,  of  S.  C.,  Ty 
ler,  Walker,  of  N.  C.,  Walker,  of  Ky.,  Whitman,  Williams,  of  N.  C.— 88. 

Nays — Messrs.  Adams,  Allen,  of  Mass.,  Anderson,  of  Pa.,  Barber,  of  Ohio, 
Bateman,  Bennett,  Boclen,  Boss,  Clagen,  Comstock,  Crafts,  Cushman,  Darling 
ton,  Drake,  Ellicott,  Folger,  Fuller,  Gage,  Gilbert,  Hale,  Hall,  of  Del.,  Hasbrouk, 
Hendricks,  Herkimer,  Herrick,  Hiester,  Hitchcock,  Hopkinson,  Hostetter,  Hub- 
bard,  Hunter,  Hunting-ton,  Irving,  of  N.  Y.,  Kirtland,  Lawyer,  Lincoln,  Linn, 
Livermore,  W.  Maclay,  W.  P.  Maclay,  Marchand;  Mason,  of  R,  I.,  Merrill, 
Mills,  Robert  Moore,  Samuel  Moore,  Morton,  Moseley,  Murray,  Jer.  Nelson, 
Ogle,  Orr,  Palmer,  Patterson,  Pawling,  Pitkin,  Porler,  Rice,  Rich,  Richards, 
Rogers,  Ruggles,  Sampson,  Savage,  Schuyler,  Scudder,  Sergeant,  Seybert, 
Sherwood,  Silsbee,  Southard,  Spencer,  Tallmadge,  Tarr,  Taylor,  Terry,  Tomp- 
kins,  Townsend,  Upham,  Wallace,  Wendover,  Westerlo,  Whitesido,  Wilkin, 
Williams,  of  Con.,  Williams,  of  N.  Y,  Wilson,  of  Mass,,  Wilson,  of  Pa. — 88. 

There  being  an  equal  division,  the  Speaker  (Henry  Clay)  declared  himself  in 
the  affirmative,  and  so  the  said  motion  was  carried. 

And  Mr.  Robertson,  of  Ky.,  Mr.  Silisbee,  of  Mass.,  Mr.  Burwell,  of  Va.,  Mr. 
Mills,  of  Mass.,  and  Mr.  Lowndes,  of  S.  C.,  were  appointed  the  said  committee. 

On  the  same  clay  Mr.  Robertson  reported  the  bill  without  the  said  amendment; 
and  on  the  question  of  concurrence  with  the  committee  in  striking  out  said  amend" 
ment,  the  House  concurred  by  the  following  vote: 

Yeas — Messrs.  Abbott,  Anderson,  of  Ky.,  Austin,  Baldwin,  Ball,  Barbour,  of 
Va.,  Bassett,  Bayley,  Beecher,  Bloomfield,  Blount,  Bryan,  Burwell,  Butler,  of 
La.,  Campbell,  Cobb,  Colston,  Cook,  Crawford,  Cruger,  Culbreth,  Davidson., 
Desha,  Earl,  Edwards,  Ervin,  of  S.  C.,  Fisher,  Floyd,  Garnett,  Hall,  of  N.  C., 
Harrison,  Hogg,  Holmes,  Johnson,  of  Va.,  Johnson,  of  Ky.,  Jones,  Kinsey,  Lew 
is,  Little,  Lowndes,  M'Lane,  of  Del.,  M'Lean,  of  111.,  M'Coy,  Marr,  Mason,  of 
Mass.,  Mercer,  Middleton,  H.  Nelson,  T.  M.  Nelson,  Nesbitt,  New,  Newton,  Og- 


PRELECTION.  33 

den,  Owen,  Parrott,  Pograrn,  Peter,  Pindall,  Pleasants,  Poindexter,  Quarks, 
Reed,  of  Md.,  Reed,  of  Ga.?  Rhea,  Ringgold,  Robertson,  Sawyer,  Settle,  Shaw, 
Simkins,  Slocumb,  S.  Smith,  Bal.  Smith,  Alex.  Smith,  J.  S.  Smith,  Speed,  Stew 
art,  of  N.  C.,  Storrs,  Strother,  Stuart,  of  Md.,  Terrell,  Trimble,  Tucker,  of  Va., 
Tucker,  of  S,  0.,  Tyler,  Walker,  of  K  C.,  Walker,  of  Ky.,  Whitman,  Williams, 
of  N.  C.— 89. 

Nays — Messrs.  Adams,  Allen,  of  Mass.,  Anderson,  of  Pa.,  Barber,  of  Ohio, 
Bateman,  Bennett,  Boden,  Boss,  Clagett,  Comstock,  Crafts,  Cushman,  Darlington, 
Drake  Ellicott,Folger,  Fuller,  Gage,  Gilbert,  Hale,  Hall,  of  Del.,  Hasbrouk,  Hen- 
drinks,  Herkimer,  Herrick,  Hiester,  Hitchcock,  Hopkinson,  Hostetter,  Hubbard, 
Huntington.  Irving,  of  N.  Y.,  Kirtland,  Lawyer,  Lincoln,  Linn,  Livermore,  W. 
Maclay,  W.'P.  Maclay,  Marchand,  Mason,  of R.  I.,  Merrill,  Mills,  Robert  Moore, 
Samuel  Moore,  Morton,  Moseley,  Murray,  Jer.  Nelson,  Ogle,  Orr,  Palmer,  Pat 
terson,  Pawling,  Pitkin,  Porter,  Rice,  Rich,  Richards,  Rogers,  Ruggles,  Savage, 
Schuyler,  Scudder,  Sergeant,  Seybert,  Sherwood,  Silsbee,  Southward,  Spencer, 
Tallmadge,  Tarr,  Taylor,  Terry,  Tompkins,  Townsend.Upham,  Wallace,  Wend- 
over,  Westerlo,  Whiteside,  Wilkin,  \\illiams,  of  Con.,  Williams,  of  N.  Y.,  Wfl- 
eon,  of  Mass.,  Wilson,  of  Pa.— -87. 

The  Bill,  as  originally  reported,  was  then  engrossed,  and  on  the  next  day, 
(20th  February,  1819)  was  passed. 

From  the  foregoing  synopsis,  the  present  age  and  posterity  will  be  able  to  see 
how  equally  divided,  and  how  geographical,  in  this  first  controversy  on  the  sub 
ject,  were  the  parties  which  have  since  so  much  agitated  the  public  mind  and  dis. 
turbed  the  public  peace,  and  may  also  see  how  far  the  following  speech  was  pro 
phetical  of  the  consequences  of  all  such  agitation,  and  presented  an  outline  ot  the 
true  national  power  and  policy,  on  a  most  delicate  and  interesting  topic. 


SPEECH  OF  MR. ROBERTSON,  OF  KENTUCKY, 

On  the  Bill  to  establish  the  Territorial   Government  of  Arkansas. 

[Congressional  Debates,  18th  of  February,  1819.] 


WHEN"  leave  was  asked  to  bring  in  this  bill  !  and  long  cherished  opinions;  and  the  gen- 
to  organize  a  separate  territorial  government '  era!  government,  responsible  to  all,  and  the 
for  Arkansas,  I  explained  the  reasons  which,  guardian  of  the  national  interests  of  all,  as  a 
in  my  judgment,  should .  commend  such  a  faithful  trustee,  must,  by  its  impartiality, 
measure  to  the  approval  of  Congress.  I  had  moderation,  and  benevolence,  conciliate  the 
consulted  no  person  on  the  subject — not  even  \  confidence;  and  affection  of  all  its  citizens, 
the  delegate  from  Missouri,  from  which  the  |  North  and  South,  East  and  West.  This  can 
proposed  territory  was  to  be  taken.  But  it  be  effectually  done  only  by  administering  the 
seemed  to  me  that  the  remote,  forlorn,  and  al-  government,  (in  its  legislative  function,  espe- 
most  lawless  condition  of  the  population  of '  dally,)  in  the  spirit  of  compromise  which 
the  Arkansas  regions,  demands,  in  resistless  brought  it  into  being. 

tones,  a  separate  and  efficient  organization  That  spirit  left  slavery  as  a  local  concern,  to 
and  government;  and  in  this  sentiment  I  am  i  be  disposed  of  by  local  interest  and  opinion,  and 
happy  to  find,  not  only  that  the  worthy  dele-  \  it  is  the  duty  of 'Congress  to  abstain  from  any 
gate  from  Missouri  concurs,  but  that  the  vote  !  act  which  will  disturb  that  wise  and  eventful 
on  the  leave  proves  the  unanimous  concur^  i  adjustment  of  a  matter  which  can  never  be  oth- 
rence  of  this  House  also.  j  crwise  settled,  either  justly  or  peaceably.  Hav- 

It  would  be  useless,  therefore,  to  repeat  or  i  ing  prohibited  foreign  importations  of  slaves 
enlarge  on  the  suggestions  made  on  a  former  j  into  the  United  States,  Congress  should  leave, 
occasion,  to  prove  the  propriety  of  passing  the  \  as  the  patriarchs  of  the  constitution  left,  the 
bill,  as  repoited,  nor  is  any  argument  as  to  domestic  institution  to  the  states,  and  the  peo- 
any  of  the  details  of  the  bill  necessary  now —  pie  of  territories  of  the  United  States,  to  be  dis- 
because  no  objection  has  been  made,  or  is  ap-  posed  of  as  each  separate  community  of  free- 
prehended  on  any  such  ground.  i  men  may  choose  for  themselves;  and  in  this 

The  great  and  only  proper  subject  of  de-  ;  domestic  aspect  of  slavery,  Congress  ought 
bate  is,  whether  it  should  pass  with  the  pro-  ;  never  to  touch  it  or  countenance  any  agitation 
posed  interdiction  of  slavery,  inserted  in  it  as  ;  concerning  it  among  the  states,  or  the  people 
a  condition  of  its  passage.  To  that  proposi-  i  of  the  United  States,  in  any  form  or  for  any 
tion  I  am  altogether  opposed,  and  if  it  be  j  purpose.  It  is  a  sensitive  plant ,  which  the  na- 
maintained,  I  shall  vote  against  my  own  bill.  '  tional  hand  cannot  touch  without  injury,  or  sen.se 

My  argument  will  be  confined  to  a  brief  dis-  j  of  outrage,  or  extreme  danger  of  both. 
cussion  of  the  amendment  for  interdicting  ;  Congress  has,  I  admit,  constitutional  power 
slavery,  proposed  by  the  gentleman  from  Xew  to  legislate  over  the  District  of  Columbia,  and 
York,  (Mr.  Taylor)  and  urged  with  so  much  i  over  Arkansas,  and  over  every  other  territory 
zeal  and  vehemence  by  himself  and  some  other  j  subject  to  the  exclusive  jurisdiction  of  the 
Northern  members.  And  not  intending- to  ar-  United  States  government;  and  1  concede,  also, 


gue  this  grave  matter  iuextenso,!  shall  con 
tent  myself,  on  the  present  occasion,  with  a 
condensed  outline  of  the  principal  reasons 
which  convince  me  that  the  question,  now  agi- 


that  this  is  so  far  plenary  as  to  be  subject  to 
no  other  limitation  than  sound  discretion  an  d 
the  federal  constitution.  Jn  other  words,  that 
the  legislative  power  of  Congress  is  as  corn- 


tated  in  a  new  form,  for  the  first  time,  is  indis-  j  prehcnsive  as  that  of  the  territory  itself  would 
creetly  proposed,  and  should  be  stilled  in  its  ;  be,  if  it,  instead  of  the  general  government, 
germ.  were  permitted  to  exercise  all  power  over  its 

Slavery  was  the  most  delicate  and  foinii.la^  '  own  concerns,  which  might  be  consistent  with 
ble  of  all  the  vexatious  subjects  which  divided  i  the  constitution  or  the  United  States.  That 
the  councils  which  made  and  adopted  the  ;  constitution  does  not  guarantee  to  1he  people 
Constitution  of  the  United  States.  Had  it  not '  of  the  territories  the  right  to  establish  slavery o 
been  wisely  put  to  sleep  by  a  magnanimous  It  leaves  i  hat  concern  to  the  discretion  of  Con. T 
compromise,  the  charter  of  our  Union  would  ;  gross,  and  the  will  of  the  people  of  the  territc- 
never  have  been  sealed.  The  same  spirit  of  ,  ries.  But  it  does  guarantee  to  every  citizen  of 
patriotic  nationalicy  and  forbearance  is  indis-  :  the  United  States  his  private  property,  r. gainst 
pensable  to  the  harmony  and  preservation  of  the  power  of  the  general  government  (except 
that  glorious  offspring  of  mutual  concession,  of  fur  taxation)  without  the  consent  of  the  owner 
local  in' crests,  and  compromise  of  conflicting  or  just  compensation.  Although,  therefore, 
4 


SPEEBH  OF  MB.  ROBERTSON. 


Congress  may  emancipate  slaves  in  any  of  the 
tearitories  of  the  United  States  where  it  exists, 
the  exercise  of  that  power  is  subject  to  the  con 
dition  that  any  owner,  who  withholds  his  con 
sent  to  the  act,  shall  be  paid  the  value  of  his 
slave  or  slaves  so  emancipated  against  his  will. 
Yet,  as  property  in  human  beings  as  slaves  is 
merely  Legal,  whether  persons  imported  into  a 
territory  subject  to  the  jurisdiction  of  the  Uni 
ted  States,_  shall  be  slaves  there  or  not,  must 
be  a  question  of  local  law,  and  depends,  there 
fore,  on  the  will  of  the  law-giver,  constitution 
ally  expressed.  Of  course  the  freemen  of  any 
such  territory,  if  permitted  to  exercise  all  leg 
islative  authority  for  themselves,  could,  with 
out  doubt  as  to  the  power,  prohibit  the  institu 
tion  of  slavery  within  their  limits;  and  conse 


quently,  Congress,  as  long  as  it  shall  choose  to  there  or  not,  just  as  they  would  control  all  their 

legislate  for  any  such  teriitory,  may  interdict  ^i->™  -i~™,^;~  ^.-,<-u,, <-;„„„  ,,^j  ^««,-«i  ,.„•!„.<-,• 

the  introduction  of  slavery  as  a  domestic  insti 


tution.  But  I  deny  that  such  legislation,  by 
Congress,  would  ever  be  NECESSARY  to  the  pub 
lic  welfare,  OR  WOULD,  IN  ANY  CASE,  WITHOUT  THE 

HEARTY  CONCURRENCE  OF  THE  SLAVE  STATES,  BE 
EITHER  JUST  OR  PRUDENT.  CongrCSS  has  11O  pOW- 

er  over  slavery  in  any  of  the  states  of  the 
Union.  Its  continuance,  therefore,  in  the 
United  States,  under  the  guarantees  of  the  fed 
eral  constitution,  depends  altogether  on  the 
will  of  the  respective  states  in  which  it  exists. 
An  expansion  of  its  area  would  not,  of  itself, 
augment  its  evils  or  prolong  its  existence,  but 
would  certainly  tend  to  meliorate  its  condition. 
Neither  policy  nor  benevolence  would  circum 
scribe  it  within  the  states  where  it  now  exists. 
No  such  effort,  by  Congress,  would  be  benevo 
lent,  because  deterioration  in  the  value  of  slaves 
and  an  a 
incident  to 


in  its  results;  for,  sir,  a  spirit  of  prophecy  is 
not  necessary  to  enable  a  statesman  to  foresee 
that  all  such  Congressional  action  will  awaken 
jealousies  and  excite  alarm,  which  will  contrib 
ute  to  the  unnatural  prolongation  of  the  legal  ex 
istence  of  slavery  in  Amercca,  rivet  chains  for 
slaves,  and,  in  its  ultimate  issue,  might  proba 
bly  even  dissolve  the  Union. 


to  the  principles  of  the  Declara- 


hilan- 


ggravation  of  the  perils  and  privations 
to  slavery  in  its  best  estate  would  be 
the  neccssaryconscqucnces  of  all  such  unphi " 
thropic  legislation.  Nor  would  such  leg 
tive  interference  be  politic.  1st.  Because  it 
would  be  inconsistent  with  true  benevolence. 
2nd.  Because  it  would,  to  a  great  extent,  give 
to  a  section  of  the  Union  and  one  class  of  our 
citizens  a  monopoly  of  the  territories  bought 
with  the  money  or  the  blood  of  all,  and  would, 
therefore,  seem  to  be  invidious  and  unparental. 
3rd.  Because  it  would  be  inconsistent  with  the 
compromising  spirit  of  the  constitution — would 
be  felt,  by  a  large  portion  of  our  fellow-citizens, 
as  intended  indirectly  to  operate  to  the  dispar 
agement  of  their  property  guarantied  by  the 
public  faith,  and  might,  therefore,  not  only  al 
ienate  the  affections  of  many  from  the  national 
government,  but  breed  sectional  collisions,  and 
generate  and  exasperate  sectional  parties — the 
most  dangerous  to  the  Union  of  all  others — 
«.nd  on  a"  subject  most  pregnant  with  unrea 
sonable  and  uncompromising  passions;  and 
lastly,  because  no  such  legislation  can  do  any 
practical  good,  and  therefore,  being  gratuitous, 
would  be  the  more  unkind  and  offensive;  for  if 
it  could  neither  hasten  the  peaceful  extinction 
of  slavery,  nor  improve  the  condition  of  slaves 
in  the  United  States,  by  what  just  or  prudent 
motive  of  national  patriotism  corjd  it  be  justi 
fied  or  extenuated?  None  but  a  morbid  phi- 


Accordin 

tion  of  Independence,  principles  consecrated 
in  the  affections,  and  imbedded  in  the  institu 
tions  of  the  countrymen  of  Washington,  every 
separate  community  of  freemen  ought  to  regu 
late  their  own  social  organization.  Under  the 
protection  of  these  principles,  the  citizens  who 
shall  cast  their  lots  in  Arkansas  ought  to 'de 
cide  for  themselves  whether  slavery  shall  exist 


other  domestic  institutions  and  social  relations 
at  home.  Against  their  will,  Congress  ought 
not  to  force  the  establishment  of  slavery  or  any 
other  domestic  relation,  among  them — against 
their  will  Congress  ought  not  to  prohibit  slave 
ry  there.  As  long  as  it  shall  exist  in  any  of 
the  states  of  the  Union,  every  territory  of  the 
United  States,  as  well  as  each  state,  should  be 
allowed  to  participate  in.  it  or  not,  as  each,  for 
itself,  may  choose.  Let  them  all  alone,  and 
especially  let  it  alone.  This  is  the  true  and 
only  safe  policy.  If,  in  climate,  soil,  and  pro 
ducts,  ARKANSAS  be  so  adapted  to  slave  labor 
as  to  induce  a  majority  of  the  immigrants  to  it 
to  carry  slaves  with  them  from  slave  states,  or 
to  incline  a  majority  of  its  freemen  to  prefer 
the  institution  of  slavery,  why  not  let  the  felt 
interests  and  inclinations  of  those  who  elect  to-' 
make  that  Southern  country  their  home,  de 
cide  its  destiny  as  to  the  relation  of  slavery? 
A  transportation  of  slaves  from  states  to  terri 
tories  does  not  increase  the  number  of  slaves  in 
the  United  States,  nor  establish  a  slavery  that 
did  not  already  exist;  and  if  left  to  the  prompt 
ings  of  their  own  interests  and  feelings,  the 
people  of  Arkansas  should  choose  to  maintain 
the  institution  of  slavery.  Congress  will  not 
be  responsible.  What  is  it  to  Congress,  or  to 
the  cause  of  universal  liberty,  whether  I  shall, 
continue  with  my  slaves  in  Kentucky  or  re 
move  them  to  Arkansas?  And  why  should 
Congress  say  to  me,  "you  shall  not  live  in 
Arkansas  unless  you  first  sell  or  manumit 
your  slaves?"  Was  the  power  to  legislate 
over  that  territory  given  for  any  such  purpose? 
Or  could  the  application  of  it  to  such  a  pur 
pose  promote  the  harmony  of  the  Union,  or  the 
cause  of  emancipation,  or  the  mitigation  of 
slavery,  or  the  aggregate  prosperity  and  gen 
eral  welfare  of  the  people  of  the  United  States? 
SLAVERY  is  GEOGRAPHICAL.  Arkansas  is  in  the 
slave  latitude.  Citizens  in  slave  states  will 
be  more  inclined  than  those  in  free  states  to 
settle  there,  as  the  people  in  the  latter  states 
will  be  more  disposed  than  those  of  the  for 
mer,  to  settle  in  territories  north  of  about  S7 


degrees,   north   latitude. 
will  ietrislate  on  slavery 


Then,  if  Congress 
in    the    territories, 

sound    policy    and    distributive  justice    and 
equality  would  recommend  that  it  draw  a  lat- 
Janthropy.  f.-il-v  i;,  it?  aims  am]  pi-rliap-j  fat al'itudimil  line,  (say  j.bcmt  H7  degrr-i-s  north  lati- 


SPEECH  OF  MR.  ROBERTSON.  27 

tude)  south  of  which  slavery  may  exist,  but  j  of  this  young,  robust,  and  promising  Union, 
north  of  which  it  shall  not.  I  would  have  no  j  and  finally,  in  the  progress  of  desolation,  may 
insuperable  objection  to  this,  although  I  would  j  DESTROY  ITS  HEART  FOREVER. 
prefer  total  abstinence  from  all  interference  on  |  Let  us  pause  and  soberly  reflect  before  we 
that  subject.  Wo  congressional  act  is  necessa-  J  take  this  rash  and  perilous  step.  Let  us  take 
ry  north  of  that  line,  beyond  which  slavery  !  counsel  of  our  patriarchs  of  'bS.  Let  us  con- 
if  left  to  its  natural  current,  will  never  run  or  '  sider  our  memorable  past,  and  look,  with  pa- 
long  continue,  and  any  unnecessary  act  of  in-  j  triot's  hearts  and  statesmen's  eyes,  to  our 
terferenceby  Congress  will  excite  jealous  feel-  •  eventful  future.  Let  us  do  as  Washington,  and 
ings,  incompatible  with  the  moral  cement  of  Franklin,  and  Jefferson  ciid,  and  wuLild  cer- 
the  Union.  i  tainly  do  agaiu  were  they  now  here.  And  if 

And  now,  /Tr.  Chairman,  dlow  me  to  say, '  we  shall  all  take  this  prudent  course,  I  feel 
that  if  the  proposed  restriction  be  pertinacious-  j  quite  sure  that  the  provision,  no\v,  for  the  first 
ly  insisted  on  and  maintained  by  the  majority  |  time,  unfortunately  agitated,  will  be  rejected 
of  Congress,  that  majority  will  heedlessly  |  by  such  a  vote  as  will  rebuke  all  Congressional 


sow  wind,  and  may,  in  time  to  come,  woefully 
reap  the  whirlwind.     They  may,  and  I  fear 


legislation  on  American   slavery,   and  assure, 
far   as   the  national   councils  can    assure, 


will,  recklessly  raise  a  storm  that  will  scatter  peace  to  our  country,  and  to  our  Union 
the  seeds  of  discord  over  this  favored  land — :  strength,  and  health,  and  hopeful  influence 
Dragons'  teeth,  whose  rank  and  pestilential  over  the  destinies  of  our  race,  here  and  else 
crop,  upas-like,  may  poison  the  vital  elements  [  where — now  and  evermore. 


PRELECTION. 


'On  the  17th  day  of  December,  1819,  Mr.  Robertson,  of  Kentucky,  sub 
mitted  to  the  House  of  Representatives  of  the  United  States  the  follow 
ing  resolution,  which  was  adopted: 

"Resolved,  That  the  committee  on  the  Public  Lands  be  instructed  to  in 
quire  into  the  expediency  of  so  altering  the  laws  regulating  the  sales  of 
the  vacant  lands  of  the  United  States,  that  from  and  after  the         day  of 
,  no  credit  shall  be  given  thereon,  and  a  less  quantity  may  be  pur 
chased,  and  at  a  less  price  than  is  authorized  by  the  existing  laws." 

After  consultation,  it  was  deemed  prudent  to  introduce  the  same  sub 
ject  into  the  Senate,  whereby  time  might  be  saved  in  the  discussion  and 
progress  of  a  bill. 

And  for  that  purpose,  Mr.  Leake  of  Mississippi,  on  the  20th  of  Decem 
ber,  1819,  brought  the  subject  before  the  Senate  by  a  resolution,  similar, 
in  substance,  to  that  previously  adopted  by  the  other  House,  on  the  reso- 
tion  offered  by  Mr.  Robertson. 

Before  the  subject  had  been  further  acted  on  in  the  House  of  Repre 
sentatives,  a  bill  passed  the  Senate  changing  the  mode  of  selling  the 
public  lands.  That  bill  was  reported  by  the  land  committee  of  the 
House,  with  amendments  striking  out  the  provisions  for  cash  sales,  at  a 
minimum  of  $1,25  an  acre,  and  for  a  sale  of  as  small  a  quantity  as  80 
acres.  Upon  full  argument,  in  committee  of  the  whole,  chiefly  by  Mr. 
Clay  on  one  side  and  Mr.  Robertson  on  the  other,  those  amendments 
were  rejected;  and,  on  the  question  whether  the  House  would  concur  in 
the  rejection,  for  which  Mr.  Robertson  contended,  the  vote  was — yeas, 
135;  nays,  19;  and  on  the  next  day,  20th  of  April,  1820,  the  bill  passed 
by  a  vote  of  133  to  23,  of  which  23  a  majority  were  from  the  West.  The 
yeas  and  nays  were  as  follows: 

Yeas — Messrs.  Abbott,  Alexander,  Allen,  of  Mass.,  Anderson,  of  Ky., 
Archer,  of  Md.,  Baker,  Baldwin,  Barbour,  Bateman,  Bayley,  Beecher, 
Boden,  Brush,  Buffum,  Campbell,  Case,  Claggett,  Clark,  Cobb,  Crafts, 
Crawford,  Culbreth,  Cnshman,  Cuthbert,  Darlington,  Davidson,  Denni- 
son,  Dewitt,  Dickinson,  Dowse,  Earl,  Eddy,  Edwards,  of  Conn.,  Ed 
wards,  of  Pa.,  Edwards,  of  N.  C.,  Fay,  Fisher,  Floyd,  Folger,Foot,  For 
rest,  Fuller,  Fullerton,  Garnett,  Gross,  of  N.  Y.,  Gross,  of  Pa.,  Hall,  of 
N.  Y.,  Hall,  of  Pa,  Hall,  of  Del,  Hall,  of  N.  C,  Hardin,  of  Ky,  Haz 
ard,  Hemphill,  Herrick,  Hibshman,  Hiester,  Hill,  Holmes,  Hooks,  Hos- 
tetter,  Kendall,  Kinsey,  Little,  Linn,  Livermore,  Lyman,  McCoy,  Mc- 
Lane,  of  Del,  Mallary,  Marchand,  Mason,  Meech,  Meigs,  Mercer,  R. 
Moore,  S.  Moore,  Monell,  Morton,  Moseley,  Murray,  Neale,  Nelson,  of 
Mass,  Newton,  Overstreet,  Parker,  of  Mass,  Parker,  of  Va,  Patterson, 
Phelps,  Philson,  Pickney.  Pindall,  Pitcher,  Plumer,  Rankin,  Reed,Rhea, 
Rich,  Richards,  Richmond,  Robertson,  Rogers,  Ross,  Russ,  Sampson, 
Sawyer,  Sergeant,  Settle,  Shaw,  Silsbee,  Simkins,  Sloan,  Slocumb, 
Smith,  of  N.  J,  Smith,  of  Md,  B.  Smith,  of  Va,  Smith,  of  N.  C, 
Southard,  Storrs,  Strong,  of  N.  Y,  Swearingen,  Tarr,  Taylor  Tomlin- 


30  PRELECTION. 

son,  TompkiiiB,  Tracy,  Tucker,  of  S.  C.,  Tyler,  Van  Renssealaer,  Wal 
lace,  Wendover,  Williams,  of  Va.,  Williams,  of  N.  C.— 133. 

Nays — Messrs.  Allen,  of  Term.,  Ball,  Bloomfield,  Brown,  of  Ky., 
Bryan,  Burwell,  Butler,  of  Lou.,  Cannon,  Cook,  Crowel,  Culpepper, 
Ford,  Hackley,  Hendricks,  Johnson,  Jones,  of  Tenn.,  McCreary,  Mc 
Lean,  of  Ky.,  Stevens,  Trimble,  ofKy.,  Tucker,  of  Va.,  Walker — 23. 

Mr.  R.  C.  Anderson,  Mr.  B.  Hardin,  and  Mr.  Robertson,  were  the  only 
members  from  Kentucky  who  voted  for  the  bill. 

This  law  was  opposed  as  anti-Western,  and  when  it  passed,  was  be 
lieved  to  be  exceedingly  unpopular  in  the  West ;  but  with  even  that  pros 
pect  of  being  proscribed,  Mr.  Robertson,  for  reasons  suggested  in  the  fol 
lowing  speech,  staked  himself  on  the  law,  as  its  author,  and  predicted  that 
time  would  prove  it  to  be  a  blessing.  And  time  has,  long  since,  affixed 
its  approving  seal  to  that  prediction.  No  law  ever  enacted  by  Con 
gress  has  been  more  generally  approved,  or  has  operated  more  benefi 
cently  on  the  Union,  and  especially  on  the  population  and  destiny  of  the  great 
Valley  of  the  Mississippi. 

This  law  established  the  system  under  which  the  public  lands  havo 
been  sold  ever^since  the  yeare!820. 


SPEECH  OF  MR.  ROBERTSON,  OFKENTUCKYr 

On  the  Change  of  the  System  of  Land  Saks. 


[Congressional  Debate,  1820.] 


Mr.  Robertson  said,  'that  it  "was  with  reluc-  J  Uninteresting  as  the  desultory  observations 
tance  and  unfeigned  diffidence  he  had  taken  j  he  should  make  must  necessarily  be,  he  hoped 
the  floor,  to  offer  to  the  committee  anything  i  the  committee  would  hear  him  patiently.  No 
which  he  would  be  able  to  say  on  the  interest-  one  could  be  insensible  to  the  importance  of  the 
ing  subject  under  consideration.  He  was  not  >  subject,  or  to  the  necessity  of  serious  and  so- 
friendly  to  apologetical  speeches,  nor  in  the  ber  consideration  in  deciding  on  it.  It  is  a 
habit  of  making  them,  but  he  owed  to  the  j  question  in  which  not  only  the  government, 
committee  an  apology  for  his  inability  to  make  j  but  the  people — not  only  the  East,  but  the 
them  any  adequate  return  for  their  kind  indul-  j  West — not  only  the  present  generation,  but 
gence  in  rising,  on  his  motion,  to  give  him  a  j  posterity  must,  in  some  degree,  be  interested, 
full  opportunity  to  deliver  his  sentiments.  j  He  feared  that  its  importance  is  not  sufficiently 

Laboring  under  severe  indisposition,  he  was  felt,  nor  its  character  and  its  tendencies  fully 
totally  incapacitated  to  do  justice  to  the  com- 1  understood 

mittee,  or  to  the  subject  which  he  was  about  He  would  not  attempt  to  give  to  it  any  facti- 
to  discuss.  Under  this  embarrassment,  well  tious  importance.  It  is  intrinsically  as  inter- 
aware  of  the  magnitude  of  the  subject,  and  of :  esting  to  the  people  as  any  subject  that  can  en- 
the  delicate  and  inteiesting  considerations  in-  j  gage  the  attention,  of  Congress  during  the  pres- 
volved  in  its  discussion,  and  the  great  interests  j  ent  session.  Whether  regarded  in  its  effects  on 
to  be  affected  bv  its  decision,  he  would  not,  if  the  fiscal  concerns  of  the  government,  or  the 
permitted  to  consult  his  feelings,  obtrude  him-  strength,  prosperity,  and  independence  of  the 
self  on  the  committee,  but  would  surrender  the  \  West,  or  its  inevitable  moral  and  political  ten- 
floor  most  cheerfully  to  some  other  member  !  dcncies,  it  had  strong  claims  to  the  most  dis- 
"who  could  entertain  them  more  profitably  and  passionate  consideration. 

more  acceptably  than  he  could  hope  to  do,  mi-  j  Having  bestowed  on  the  subject,  said  Mr. 
der  the  most  favorable  circumstances.  But  i  Robertson,  all  the  reflection  that  its  impor- 
the  peculiar  situation  in  which  he  happened  !  tance  and  a  due  respect  for  the  opinions  of 
to  stand  left  him  no  such  discretion.  He  felt  I  others  required  and  his  limited  means  per- 


himself  constrained,  by  a  sense  of  duty  to  his 
state  and  himself,  to  give  some  of  the  reasons 
which  would  influence  his  rote. 

Having  introduced,  early  in  the  session,  a 
resolution,  instructing  the  committie  on  pub 
lic  lands  to  inquire  into  the  expediency  of  the 


mitted,  and  having  come  to  the  conclusion  that 
the  passage  of  the  bill  is  demanded  by  consid 
erations  of  policy  which  he  thought  a  states 
man  could  not  safely  resist,  he  could  not  hesi 
tate  to  give  it  his  vote,  disregarding  the  conse- 
qunnces  that  had  been  threatened.  He  felt 


measure  now  under  consideration,  it  was   ne-   bound  to  discharge  his  duty  impartially,  and 
cessary,  lest  he  might  be  suspected  of  a  dere-    he  should  do  it  fearlessly, 
liction  of  duty,  to  defend  the  policy  of  the  sys-       He  said  he  regretted  that  he  could  not  co-op- 
tem  he  had  recommended.  i  crate  with   his  "colleague,  (the   Speaker,    Mr. 

And  having  the  misfortune  not  to  be  sup-  Clay,)  whose  feelings  on  this  subject  he  ad- 
ported  by  the  co-operation  of  some  of  his  col-  mired,  but  with  whose  opinions  he  could  not 
leagues,  who  opposed  the  bill  from  the  avowed  j  concur. 

apprehension  that  it  would  injure  the  Western  |  But  he  must  be  permitted  on  this,  as  well  as 
country,  and  aimed  a  blow  at  its  prosperity  on  all  other  occasions  of  public  duty,  to  pur- 
and  influence,  he  felt  imperiously  called  upon,  sue  the  dictates  of  his  own  conscience  and 
by  considerations  which  he  couhrnot  resist,  and  i  judgment.  Acting  on  his  own  responsibility, 
obligations  from  which  lie  should  not  shrink,  to  i  if  he  was  wrong,  it  was  sufficient  for  him  that, 
vindicate  the  policy  of  his  course,  and  endeav-  "he  believed  he  was  right.  And  on  this  sub- 
or  to  maintain  the.  rectitude  of  his  opinions  and  ject,  others  might  ihink  as  they  pleased,  but 
the  integrity  of  his  motives.  i  he  felt  a  strong  conviction  that  the  adoption  of 

He  said  that  lie  was  not  so  vain  as  to  sup-  :  the  cash  system  would  promote,  not  only  the 
po--i'  that  lie  would  be  able  to  offer  to  the  com-  interest  of  the  general  government  and  of  the 
mittee  any  considerations  in  favor  of  the  bill  people  of  the  United  States,  but  the  substantial 
th;U  had  not  oocnnvd  to  them,  but  he  did  hope  arid  permanent  interests  of  the  Western  coun- 
:md  believe  th;ir  h-.;  should  b<>  able  successful-  t;y. 

ly  to  defend  his  opinions  with  the  nation,  and  !  'Mr.  Robertson  :-.iid.  that  iV1.  question  is 
even  the  Western  country.  [not  whether  the  plan  for  selling  the  public 


32 


SPEECH  OF  MR.  ROBERTSON. 


the  remainder  in  four  years,  -with  interest,  if 
not  punctually  paid,  and  the  laud  forfeited,  if 
the  whole  consideration  be  not  paid  in  five 


years.     The  bill    before   the  committee 


pro- 


lands  now  proposed  as  a  substitute  for  the  one 
in  operation  is  unexceptionable  or  would  ef 
fectually  prevent  the  recurrence  of  all  the 
abuses  and  difficulties  which  it  was  acknowl 
edged  had  resulted  from  defects  in  the  latter, 
but  only  whether  it  be  more  perfect,  and  better 
suited  to  the  purposes  for  which  the  old  system 
was  established. 

He  said  that  the  Senate's  bill,  like  all  other 
human  productions,  however  perfect  in  theory, 
would,  no  doubt,  in  its  execution,  be  found 
liable  to  some  objections.  But  these,  he  felt 
sure,  would  be  comparatively  insignificant; 
and  he  thought  that  the  proposed  law  is  not 
only  better  than  the  existing  one,  but  as  per 
fect  as  the  experience  of  twenty  years,  and  the 
circumstances  of  the  times  and  the  country 
would  enable  Congress  to  make  one. 

He  said,  that  in  opposition  to  the  bill,  it  had 
been  urged  that  the  present  system  is  a  vener 
able  one,  and  not  to  be  changed  unless  practi 
cal  men  should  pronounce  the  change  neces 
sary.  He  did  not  profess  to  be  a  very  "practi 
cal  man''  or  to  know  more  on  this  subject  than 
others;  bxit  he  thought  that  no  one  should  be 
denounced  as  a  rash  or  an  unskillful  innovator, 
who  should,  after  an  experiment  of  twenty 
years,  endeavor  to  correct  abuses  and  prevent 
difficulties  which  it  had  disclosed,  and  which 
might  produce  consequences,  which,  if  not 
averted  by  timely  interposition,  might  embar 
rass  the  government  and  disturb  society.  He 

thought  that  if  the  system  which  had  been  in  were  enabled  to  oppress  that  class  and  enrich 
operation  for  twenty  years  were  known  to  be  j  themselves.     Instead     of    strengthening     the 
defective,  it  should  be  amended,  and  that  if  j  Union  and  enriching  the   country,   he  feared 
the  argument  of    innovation  were  applicable 
now,  it  never  would  be  inapplicable.     As  to 


poses  to  sell  the  public  lands  for  cash,  at 
price  not  less  than  one  dollar  and  twenty-five 
cents  per  acre,  and  in  tracts  containing  not 
less  than  eighty  acres. 

The  first  system,  he  said,  having  been  tried 
twenty  years,  is  ascertained  to  be  defective. 
The  last  is  intended  to  remedy  the  defects  of 
the  first,  which,  it  is  believed,  might  be  ef 
fectually  and  safely  done.  The  first,  it  is  true, 
had  been  prepared  with  great  care,  and  was 
considered,  when  adopted,  better  adapted  than 
any  other  that  could  then  be  devised,  to  the 
ends  for  which  it  was  instituted.  These  ends 
were,  1st.  Revenue,  and  2nd.  The  promotion 
of  the  general  and  substantial  interests  of  so 
ciety,  by  extending  population  and  encourag 
ing  industry,  and  the  domestic,  social,  and 
civic  virtues.  But,  said  he,  consistently  with 
these  purposes,  it  is  ascertained  that  it  cannot 
be  fully  executed.  The  experience  of  20  years 
had  demonstrated  its  inefficiency  and  its  ten 
dency,  from  abuse  and  accident,  to  conse 
quences  unforseen  and  mischievous.  Instead 
of  proving  a  sure  resource  of  revenue,  he  be-^ 
lievcd  that,  'ere  long,  the  treasury  could  not 
rely  no  it.  Instead  of  meliorating  the  condi 
tion  of  the  poor,  it  had  often  been  an  instru 
ment  in  the  hands  of  the  rich,  by  which  they 


"practical  men,"  he  said  he  did  not  precisely 
comprehend  its  import.  But  he  supposed  that 
those  who  had  observed  and  felt  the  operation 
of  the  present  system,  from  its  adoption  until 
now,  might  be  considered  sufficiently  "practi 
cal"  for  all  the  purposes  of  the  bill;  and,  al 
though  he  was  unwilling  to  adopt  the  opin 
ions  of  others,  merely  because  lie  might  con 
sider  them  "practical  men,"  he  would  tell  the 
gentleman  from  Tennessee,  (Mr.  Jones)  that 


that,  if  persisted  in,  it  would  tend  to  weaken 
the  one  and  embarrass  the  other;  instead  of  in 
creasing  the  resources  of  the  West,  he  believed 
that  it  tends  to  their  subduction;  in  short,  he 
believed  that  it  could  not  be  continued  in  op 
era  Lion,  without  creating  the  most  unpleasant 
embarrassments  in  the  government  and  among 
the  people.  That  it  was  defective,  he  said,  he 
believed  all  acknowledged.  But,  in  regard  to 
the  nature  and  extent  of  its  defects,  their  opera 
tion  and  ultimate  tendency,  and  their  reme 
dies,  there  was  a  diversity  of  opinion.  How- 


he  believed  the  most  practical  men  in  the  ever,  for  all  his  purposes,  it  would  only  be 
United  States,  on  land  subjects,  are  in  favor  necessary  to  show  one  radical  defect,  and  that 
of  the  change  proposed  in  the  bill  under  con-  the  proposed  substitute  would  remedy 


sideration.  He  would  ask,  who  is  more 
"practical"  on  all  subjects  that  concerned  the 
public  lands  than  a  late  Senator  from  Ohio; 
(Mr.  Morrow)  and  whose  opinions  have  and 
deserve  more  universal  influence?  He  had 
been  called,  by  a  Senator  from  Kentucky,  (Mr. 
Crittenden)  the  Palimirus  of  the  Senate.  And 
i«  it  so  soon  forgotten,  that  lie  wished  to  make 
the  adoption  of  the  system  now  proposed  the 
last  act  of  his  long  political  life?  That  he  felt 
and  avowed  the  necessity  of  reforming  the 
present  system?  And,  said  Mr.  Robertson, 
1  he  voice  of  the  people  will  applaud  him  for 
his  patriotic  purpose. 

By  the  law  now  in  operation,  said  Mr.  Rob- 

..!_ 1_1-1__J_ 11     ' 


without  producing  any  bad  effects  that  legis 
lation  could  prevent. 

This  radical  defect,  lie  said,  he  found  in  the 
credit  given  to  the  purchaser,  and  he  believed 
thai  ihemo.-t  serious  difficulties  that  had  oc 
curred,  or  would  occur,  under  the  operation  of 
the  credit  system,  might  be  ascribed  to  the 
credit. 

*  Mr.  Robertson  said  th,°t  he  should  not  ven 
ture  1o  state  that,  the  revenue  had  been  dimin 
ished  by  the  sale  of  the  public  lands  on  credit. 
It  was  impossible  to  ascertain,  with  certainty, 
whether  there  had  been  any  diminution  in  its 
amount,  as  the  ca-h  system  had  never  been 
l.ried.  jJut.  he  would  venture  to  predict  that 


ertson,  the  public  lands  are  sold  in  quantities  |  there  would,  in  a  few  years,  be  a  loss  inevita 


bly,  unless  the  bill  before  the.  committee  should 
become  a  law.     It  was  well  known,  he  paid, 
one-fourth  to  be  paid  at  the  time  of  sale,  and   thnt  appl'c.-tion  had  been  made,  by   th?  p<;r- 


not,  less  than  one  hundred  and  sixty  acres,  and 
rice  not  less  than  two  dollars  per   acre, 

.__J.1_       U_  1  •      1  i        21  A     '  f  _    1  1 


at  a  p 


OX  THE  LAND  BILL. 


Chasers  of  public  lauds,  for  many  years  succes- ,  remaining  three-iuu|:ths  of  the  consideration, 
sively,  for  indulgence,  and  that .laws  had  been' Under  the  most  nuspieious  circumstances, 
repeatedly  passed,  exempting  from  forfeiture  j  same  of  the  purchasers  must  unavoidably 
lands  which  had  been  purchased  on  credit,  j  Become  delinquent.  But  if  misfortune  or  ca- 
aaid  for  which  the  purchasers  had  failed  punp- 1  lamity  should  fall  on  the  public  debtor,  or  tho 
tually  to  pay.  This  kind  of  indulgence  had  j  currency  should  become  deranged,  or  the  sea- 
almost  become  a  matter  of  course.  It  had  j  sons  unpropitious,  or  ihe  market  for  agricultu- 
freen  extended,  with  a  few  exceptions,  annu-  !ral  products  dull  or  unprofitable,  how  would 
ally,  for  more  than  ten  years.  He  believed  it  j  the  debt  be  punctually  discharged?  But,  said 


had  never  been  refused,  and  he  doubted  wheth 
er  it  ever  would  be.  A  bill  had  been  engrossed 
this  morning,  extending  the  indulgence  one 
year  longer,  and  it  is  obvious  that  a  similar 
law  must  pass  at  the  next  session,  and  for 
many  consecutive  years,  or  the  debtors  for  the 
public  lands  must  be  subjected  to  great  dis 
tress,  and  many  of  them  to  ruin.  Mr.  Kobert- 
son  said  that  he  did  not  wish  to  be  under 
stood  as  intimating  that  the  indulgencies  here 
tofore  given  were  unnecessary  or  improper;  on 
the  contrary,  he  was  sure  that  they  had  been 
proper,  and  that  it  would  be  necessary  to  re 
new  them.  But  he  thought  that  that  policy 

luust  be  unwise  which  subjected  the  national  ,  0  l , 

legislature  and  the  people  to  such  vexatious  j  he  would  say,  and  was  bound  to  believe,  thar, 
embarrassments,  and  that  any  sysU-m  which  |  the  debt  would  became  so  much  augmented, 
required  such  temporary  and  mitigating  expe-  I  that  its  entire  collection  would  be  difficult,, re- 
dients  in  its  operation,  must  be  radically  de-  i  mote,  doubtful  and  perilous.  And  he  should 
fective.  The  necessity  of  continued  indul-  (not  attempt  to  disguise  his  apprehension  that, 


he,  add  to  these  considerations  the  exorbitant 
prices  which  the  advantages  of  credit  tempt, 
ihe  speculator  to  promise,  (which  is  the  most 
fruitful  source  of  accumulation)  and  which  it 
is  impossible  that  he  can  ever  pay,  and  how  in 
evitable  is  the  growth  of  the  land  debt?  It 
must  continue  to  increase  as  long  as  credit  shall 
be  given. 

Such  a  system,  said  he,  liable  to  so  many 
contingencies,  must  be  intrinsically  defective. 
It  could  mjt  long  be  continued  in  operation, 
without,  defeating  the  ends  of  its  institution. 
It  could  not  be  executed.  He  would  not  say, 
if  persisted  in,  it  vquld  eventually  create  a 
debt  so  large  that  it  never  could  be  paid.  But, 


gcnce  indicated  very  clearly  the  necessity  of 
changing  the  system  which  produced  it.  In 
deed,  said  he,  every  argument  that  has  been 
or  could  be  urged  in  favor  of  indulgence,  tends 


it  never  would  be  entirely  collected;  or,  if  col 
lected,  that  it,  would  be  under  circumstances 
which  would  prove  that  it  would  have  been 
better  that  it  had  never  been  either  contracted 


or  coerced.  He  felt  compelled  to  believe,  tha". 
if  the  credit  system  be  continued  much  longer, 
the  government  would  necessarily  lo^e  a  great 


strongly  to  show  the  propriety  of  refusing,  in 
future,  that  credit  which  has  rendered  such  ar 
guments -proper  and  necessary. 

He  said  that  he  had  frequently  heard  it  part  of  the  proceeds  of  sales,  or  wquld  have  to 
stated,  and  his  friend  from  Tennessee,  (Mr.  i  secure  theni  at  the  expense  of  the  best  interests 
Jones)  had  reiterated,  that  the  accumulation  of  of  the  Union. 

the  debt  for  the  public  lands,  and  the  inability  He  was  unable  to  perceive  how  such  a  di- 
of  the  debtors  to  discharge  it.  resulted  from  j  lemma  could  be  avoided.  The  people  could 
temporary  and  accidental  causes,  and  that  it  is  i  not  pay  the  debt  now  due;  that,  debt  must  in- 
not  probable  that  the  indulgence  thereby  ren-  crease;  the  causes  are  permanent,  and  the  effects 
dered  necessary  would  long  be  required. 

He  would  not,  he  said,  enter  into  an  exami 
nation  of  those  circumstances  alluded  to  by  the   sible  to  collect  twenty-two  million,  how  much 


inevitable.     When,  and  how,  he  asked,  would 
it  be  collected?     If  it  will  be  difficult  or  impo-s- 


gentleman  in  support  of  that  opinion,  because 
their  character  rendered  a  minute  investigat  ion 


more  difficult  will  it  be  to  collect,  with  safely, 
one  hundred  million?     Will  you  refuse  further 

,cf  them  unnecessary.  He  thought  it  easily  i  indulgence,  and  thereby  subject  the  land  to  i'or- 
demonstrable,  that  the  causes  of  the  accumu-  feiture?  Then, passing  by  oilier  consequences. 
lation  of  the  debt  were  neither  accidental  nor  you  distress  and  ruin  many  of  the  purchasers; 
temporary;  they  existed  in  the  nature  of  the  j  unil.  in  that  event,  it  will  have  been  unfortu- 
system,  and  would  continue  to  produce  their  jn^te  for  them  that  you  gave  them  credit.  If 
results,  as  long  as  it  should  be  kept  in  opera-  yqu  refuse  indulgence,  confusion,  disaffection, 
tion.  'I  he  circumstances  mentioned  by  the  j  and  oppression  will  follow;  if  you  grant  it,  tho 
gentlemen  may  have  had  some  influence  on  the  ;  government  loses  revenue.  Gentlemen  might, 
extent  of  the  increase,  but,  if  they  had  never  j  chqose  their  alternative.  But  it  is  certainly  thq 
occurred,  the  debt  would  have  grown,  and  in-  province  of  anenlighted  policy  to  prevent  this 
dulgence  have  been  necessary.  The  debt  had  dilemma,  when  it  might  be  possible,  by  oppor- 


becn  gradually  accumulated  for  many  years — 
in  good  times,  and  in  bad  times,  and  under  all 


circumstances. 


It  could   no!"  reasonably  be  expected  that  a 


tune  inter])* /si tion.  This,  he  thought,  is  now 
practicable;  but  no  one  could  say  how  long  jt 
wquld  be  so.  And  if,  by  such  interposition, 
the  government  should  sell  its  lands  for  34 


man,  who  should  be  able  to  pay  only  the  first  ;  cents  per  acre  less,  (the  difference  between 
installment  for  a  tract  of  land,  could  transplant  !  cash  payments  under  the  two  systems)  it,  will 
himself  and  family  in  the  Western  wilds,  open  [be  more  than  compensated,  by  certainly  in 
a  farm,  build  his  houses,  support  his  family,  '  gettin  the  whole  amount  of  sales. 


and  be  able  in  four  years,  to  save,  by  the  enlfi-  1     Mr.  Robertson  said,  that,  it   was  uBoles;-?  to 
f  tho  soil,  as  much  a.>  would  pay  the   talk  to  him  of  the  security  the  government  po!  - 


ration  o 


SPEECH  OF  MR.  ROBERTSON. 


Hcssed,  bv  holding1  the  title  to  the  land.  This 
security  is  only  nominal;  for  while,  by  holding 
it,  with  a  heavy  and  ruinous  debt  impending 
oTcr  your  land  debtors,  you  keep  them  com 
paratively  in  a  state  of  dependence  and  tchan- 
cy,  you  -will,  at  the  same  time,  be  unable  or 
unwilling  to  evict  them,  and  sell  their  houses 
to  hungry  speculators  and  strangers.  But,  if 
you  should  so  sell,  it  would  be  an  event  that 
might  be  deeply  felt,  and  long  deplored. 

The  home  of  a  freeman,  said  he,  is  dear  to 
his  heart.  It  is  sacred;  it  is  the  centre  of  his 
affections  and  of  his  happiness;  it  is  the  sanc 
tuary  of  his  wife  and  children.  It  is  conse 
crated  by  being  his  home,  and  often  endeared 
to  him  by  being  the  birth-place  of  his  little 
ones.  Will  you  venture,  for  a  paltry  consider 
ation,  to  tear  this  from  him,  and  thereby  strike 
into  wild  and  discordant  commotion,  all  those 
lender  strings?  He  felt,  he  said,  that  he  was 
touching  a  delicate  subject,  on  which  it  would 
be  painful  to  dilate,  lie  would,  therefore,  not 
pursue  it,  but  content  himself  by  having  hint 
ed  at  it,  with  barely  opening  the  door  to  the 
vi-ew  of  some  of  the' consequences  that  would 
attend  the  credit  system. 

Mr.  Robertson  said,  that  all  his  observation 
and  experience  taught  him  to  believe  that  any 
permanent  system  of  credit,  national  or  indi 
vidual,  is  pernicious.  It  is  unnatural  and  se 
ductive,  and  had  generally  brought  on  those 
concerned  in  its  operations,  distress,  and  not 
imfrequcntly  ruin.  It  is  nationally  a  Pandora's 
box.  What  else,  he  asked,  was  more  fruitful  of 
the  distress  with  which  the  people  of  the 
United  States  are  now  so  much  afflicted? 
And  what  else  is  the  cause  of  the  magnitude  of 
the  land  debt,  and  its  concomitant  embarrass 
ments?  Would  not  the  people  now  be  in  a  bet 
ter  condition,  if  it  had  never  been  incurred? 
And  would  not  the  Western  country,  particu 
larly,  be  more  prosperous  and  independent,  if 
credit  had  never  been  given  on  the  public 
lands?  Would  it  not  be,  in  relation  to  the  gen 
eral  government,  out  of  debt? 

But,  in  addition  to  the  objections  he  had 
mentioned,  he  said  there  were  many  others  to 
the  land  credit.  It  deceived  and  embarrassed 
the  purchaser.  It  compelled  him  frequently 
to  promise  too  high  a  price  for  his  land;  it 
tempted  him  to  go  beyond  his  means;  it 
placed  the  occupant  in  the  power  of  the  non 
resident  speculator,  and  subjected  the  pur 
chasers,  of  every  dcscripiton,  to  the  control  of 
circumstances  which  they  could  not  foresee  or 
avert,  to  the  caprice  of  fortune,  and  to  the 
mercy  of  government. 

The  purchaser,  said  he,  if  Ihcre  were  no 
credit,  would  not  have  to  complain  of  the  vi 
tiated  paper  currency,  nor  to  reproach  the  gov 
ernment  with  refusing  to  receive  of  him  such 
depreciated  paper  as  he  had  been  compelled, 
in  his  transactions,  to  receive;  nor  would  the 
capitalist  be  able  to  unhouse.  the  poor  man, 
with  family,  who  had  enhanced  the  value  of 
the  soil  by  improvements,  and  who,  without 
his  fault,  had  become  unable  to  pay  the  whole 
price  for  it  punctually;  nor  would  the  ears  of 
b«  availed  with  report*  of  ntfarioua 


speculations,  in  fraud  of  the  government,  and 
to  the  injury  of  the  poor.  Look,  said  he,  to 
Alabama.  What,  but  credit,  was  the  cause  of 
the  exorbitant  prices  bid  there  for  land,  or  of 
the  great  speculations  that  had  been  made 
there  or  attempted?  Would  not  many,  who 
purchased  there,  be  unable  to  pay?  Was  not 
j  the  magnitude  of  that  debt  alarming?  He 
did  not,  lie  said,  wish  to  pursue  this  part  of  the 
subject;  he  had  no  doubt  he  was  sufficiently 
understood. 

Mr.  Robertson  here  observed,  that  the  ob 
jections  to  the  credit  system,  which  had  most 
influence  with  him,  were  of  a  character  differ 
ent  from  those  which  were  merely  financial  or 
personal,  and  of  infinitely  more  consequence 
in  view  of  wise  policy  and  enlightened  patri 
otism.  They  grew  out  of  the  moral  and  polit 
ical  tendencies  of  credit  between  the  people 
and  their  government.  This  was,  he  said,  an 
embarrassing  topic;  hut  his  duty  would  not 
excuse  its  pretermission.  He  could  not  avoid 
it.  It  lay  across  his  way.  He  should,  there 
fore,  give  his  opinion  in  regard  to  it  without 
disguise. 

History,  and  a  knowledge  of  the  nature  of 
republican  government,  proved,  that  the  rela 
tion  of  creditor  and  debtor,  ought  not  to  exist 
between  the  government  and  the  people.  Ib 
begets  obligations,  and  interests,  and  feelings, 
incompatible  with  the  genius  of  free  institu 
tions.  If  the  citizen  must  stand  in  that  rela* 
tion  to  hi$  government,  itis  best  that  he  should 
be  the  creditor.  If  he  stand  in  the  attitude  of 
debtor,  his  interest  may  not  be  the  interest  of 
the  government,  arid  his  feelings  may  not  al 
ways  be  in  accordance  with  his  duty.  But, 
the  objections  to  such  a  relation  are  multiplied 
and  strengthened  when  it  is  permitted  to  exist 
between  the  government  and  an  entire  commu 
nity,  or  a  large  portion  of  the  whole  popula 
tion.  It  is  then  that  the  government  may  be 
compelled  to  feel  its  own  impotency,  and  tho 
supremacy  of  those  passions  which  it  was  in 
stituted  to  control;  and  it  is  then  that  it  may 
be  in  danger  of  degenerating  into  a  govern 
ment  of  men,  and  not  of  laws;  of  passions,  and 
not  of  principles;  of  arbitrary  force,  and  not  of 
enlightened  public  opinion. 

He  said,  that  it  had  been  very  seldom  tho 
policy  of  governments  to  encourage  or  permit 
this  odious  and  dangerous  relation  permanent 
ly;  and  most  of  those  that  ever  did,  had  left 
striking  memorials  of  its  impolicy.  In  Great 
Britain  it  exists  to  a  great  extent;  and  there,  ii 
is  true,  it  is  not  deprecated  by  those  who  ad 
minister  the  government,  but  is  considered  by 
them  the  bulwark  of  the  constitution.  It  for 
tifies  that  government,  by  making  it  the  inter 
est  of  the  opulent  and  influential  to  maintain 
it.  In  this  mercenary  way,  public  sentiment 
is  stifled,  and  instead  of  being  endangered, 
the  government  is  almost  impregnably  en 
trenched  behind  wealth  and  aristocracy. 
Therefore,  in  England,  the  public  debt  is  con 
sidered  by  many  a  public  blessing. 

But,  for  the  same  reasons,  he  believed  that, 
in  free  governments,  it  would  be  considered  tli« 
greatest  curse.  What  would  b«  the  condition 


N  THE  LAND  BILL. 


S6 


wf  England,  if,  instead  of  being  the  debtor,  she 
was  the  creditor  of  her  subjects?  Who  would 
then,  be  the  ministerial  champion?  Who  would 
then  preserve  the  government  from  revolution? 

Mr.  Robertson  said,  that  he  did  not  mean  to 
argue  that  the  creation  of  a  large  land  debt 
would  eventuate  in  the  disruption  of  our  hap 
py  confederacy;  but  its  tendencies  would  be 
towards  disunion.  If,  said  he,  in  England,  it 
is  necessary  to  the  existence  of  the  govern 
ment,  that  it  should  be  deeply  indebted  to  its 
subjects,  he  would  submit  it  to  serious  consid 
eration,  whether,  in  the  United  States,  the 
Union  would  be  strengthened  or  cemented  by 
permitting  the  citizens  to  be  largely  indebted 
to  the  government? 

If,  in  England,  the  indebtedness  of  the  peo 
ple  to  the  government  would  endanger  its  sta 
bility,  would  it  be  wise  or  safe  to  maintain  the 
converse  of  the  proposition  here? 

He  thought  no  argument  could  be  derived 
from  the  peculiar  character  of  the  Ameri 
can  institutions  or  people,  sufficiently  strong 
to  render  it  prudent  policy  here,  to  encourage 
or  permit  a  large  body  of  the  community  to  be 
come  largely  indebted  to  the  government.  On 
the  contrary,  he  believed  that  a  practical  or 
philosophical  view  of  the  peculiar  contexture 
of  the  American  institutions,,  would  show  that 
Buch  an  experiment  would  be  as  dangerous 
here  as  elsewhere.  In  this  free  country,  said 
Mr.  R.,  public  opinion  i.s  the  substratum  of  the 
political  fabric,  and  the  attachment  and  confi 
dence  of  the  people  constitute  the  cement 
whicli  increases  its  strength  and  preserves  its 
symmetry. 

Without  the  support  of  the  first,  the  whole 
superstructure  is  prostrate;  forfeit  the  last,  and 
the  fairest  and  most  sacred  temple  of  liberty 
•on  earth  is  in  dilapidation.  It  is  not  inde- 
strnctable,  and  depends  more  on  moral  than 
political  principles. 

%.  The  peculiar  conformation  of  the  federal 
government — being  "impcrium  in  impcrio"— 
enhances  the  value  of  public  sentiment,  and 
renders  it  more  necessary  to  the  stability  of 
•constitutional  authority  that  popular  confi 
dence  should  be  preserved,  and  the  whole  mor 
al  strength  of  the  body  politic  kept  undivided 
on  the  side  of  the  Union.  The  union  of  the 
Btates,  he  said,  was  the  first  object  of  the  con 
stitution.  Nothing  should  be  encouraged  that 
could  weaken  its  ties.  They  are  few  and  weak 
enough.  Local  feelings  and  sectional  jeal 
ousies  are  already  sufficiently  strong  and  nu 
merous.  He  feared  it  might"  be  unsafe  to  in 
crease  them;  it  might  do  mischief;  it  could  not 
possibly  do  good.  He  repeated,  that  lie  did 
not  mean  to  insinuate  that  the  Western  debt,  if 
augmented  to  even  one  hundred  million,  would 
destroy  the  Union.  He  could  not  utter  such  a 
sentiment.  But  he  did  mean  to  say  that  such 
a  debt  would  inevitably  tend  to  inspire  feel 
ings  and  generate  interests,  at  [war  with  the 
fundamental  principles  of  the  Union.  He 
hoped  that  there  would  always  be  too  ranch 
American  virtue  and  good  sense  to  permit  any 
circumstances  to  produce  such  an  awful  cata°- 
a1*  dissolution. 


But  he  was  an  unsafe  guardian  of  the  consti 
tution,  who  would  do  or  permit  to  be  done, 
while  he  could  prevent  it,  any  tiling  that  might 
provoke  any  attempt,  or  even  inclination,  to 
wards  its  destruction.  Mr.  Robertson  said  ho 
felt  devoted  to  Western  interests,  and  had 
great  confidence  in  Western  virtues,  moral  and 
political;  but,  on  a  national  question,  which 
should  be  decided  on  national  principles,  he 
would  be  guilty  of  incivism  if  he  were  to  act 
under  the  influence  of  local  or  sectional  feel 
ings.  He  was  not  so  Godwinian  in  his  opinion 
of  human  nature,  nor  so  Utopian  in  his  politi 
cal  principles,  as  to  legislate  on  the  supposed 
peri'ectability  of  the  one,  or  practical  infalli 
bility  of  the  others.  Legislation  should  bo 
adapted  to  men  and  things  as  they  are,  and 
every  legislator  should  regard  the  passions,  as 
well  as  the  virtue  of  human  nature.  Why  is 
it,  said  he,  thut  manners  govern  laws?  Why 
was  it  that  Solon,  when  asked  whether  his 
laws  were  as  perfect  as  he  could  make  them, 
replied,  that  they  were  as  good  as  the  people 
would  bear? 

Mr.  Robertson  said,  that  the  people  of  the 
West  are  attached  to  the  general  government; 
he  did  not  wish  to  see  that  attachment  alien 
ated.  They  are  patriotic,  and  he  did  not  wish 
to  have  that  patriotism  chilled  by  any  system 
of  public  policy,  which,  he  feared,  if  persisted 
in,  might  have  that  effect.  Their  feelings, 
said  he,  are.  with  the  Union.  Do  not  provoke 
indifference;  do  not  excite  their  jealousies  or 
their  fears,  but  encourage  their  confidence  by 
deserving  it.  Then,  indeed,  they  would  al 
ways  be  found  among  the  first  in  your  councils 
and  in  your  fields.  Then  do  not  weaken,  but 
strengthen  the  ligaments  that  bind  the  body 
politic,  and  you  will  diffuse  health  and  vigor 
through  the  system. 

But,  said  he,  how  different  may  be  its  con 
dition,  if,  by  continuing  the  credit  system, 
Congress  should  compel  the  West,  in  [.self-de 
fence,  to  oppose  in  a  bodv  the  passage,  or  re 
sist  the  execution  of  laws  which  it  may  be  the 
interest  and  wish  of  the  East  to  enact  and  to 
enforce,  or  should  give  the  East  an  engine  with 
which  it  might  annoy  and  oppress  the  West, 
or  should  distract  and  pervert  the  public  coun 
cils,  and  array  the  East  and  the  West  against 
each  other.  Should  this  state  of  things  ever 
occur,  (and  that  it  must  sooner  or  later,  under 
the  present  system,  if  continued,  seemed  to 
him  as  inevitable  as  the  decrees  of  fate)  no 
man  should  shut  his  eyes  to  the  consequences 
that  must  follow.  He  would  not  portray  them, 
but  the  effect  that  would  be  produced  on  the 
feelings  and  policy  of  the  West,  and  -on  the 
legislation  of  Congress,  not  to  look  at  ulterior 
results,  must  be  seen  by  all  who  are  ac 
quainted  witli  human  nature,  or  the  history  of 
!  the  world.  Would  not  the  West  be  interested 
deeply  in  indulgence,  while  the  other  members 
of  the  Union  might  be  inclined,  or  even  ne 
cessitated,  to  coerce  payment?  Might  not  a 
Western  party  be  created,  (and  would  it  not  be 
formidable?)  with  anti-national  interests  and 
feelings?  Would  not  the  people  of  the  West 
expect  and  require  indulgence?  Might." they 


SPEECH  OF  MR,  ROBERT&Otf, 


not  be  willing  or  eoinpolied  to  make  sacrifices  '  Green  River  less  united  ill  interest  and  feeling 
to  obtain  it?  If  opposed,  might  they  not  be  i  than  the  people  west  and  east  of  the  Aiieghany 
exasperated?  1C  defeated,  might  the}"  not  feel '  mountains?  Are  the  citizens  of  Kentucky 
it  their  duty  to  resist?  Might  not  indulgence  |  less  attached  to  their  State  constitution  than 
become  a  prominent  feature  in  Western  policy?  the  western  people  are  to  the  general  govern - 
Might  nor  members  of  Congress  be  elected  .  mcnt?  He  said,  that  the  nature  of  the  con fed- 
solely  Math  a  view  to  the  indulgence?  Might  oration  would  prove  that  a  federal  land  debt, 
they  not  be  willing  to  make  legislative  coin-  :  must  be  infinitely  more  mischievous  than  any 
promises  to  attain  the  only  end  of  their  elec- { state  debt,  under  any  circumstances,  on  ac 
tion?  Would  not  the  East  thus  have  an  ascen- 1  count  .of  the  magnitude  of  the  debt,  and  the 


dcricy,  almost  irresistible,  over  the  West? 

From  such  a  humiliating  and  perilous  pre 
dicament,  Mr.  Robertson  said  he  would,  while 
as  yet  possible,  rescue  the  Western  coum 

nn  i_i     l   .  .     l     J   .  T,  j.      '  j? *j.j.  -  .1     j. , 


it  was 


confliction  of  political  interests,  and  feelings 
and  obligations,  not  merely  in  the  West,  but 
in  the  East,  and  the  North,  and  the  South. 

He  said,  that  if  he  should  be  compelled  to 

try.  The  mammoth  land  debt,  if  permitted  to  |  select  any  portion  of  the  population  of  the 
grow,  would  be  sufficiently  calamitous  if  it; United  States  to  defend  the  Union,  in  any 
should  only  lead  to  some  of  the  consequences  !  emergency,  he  should  look  to  the  West. 
.at  which  he  had  hinted.  Such  consequences  j  He  concurred  fully  with  hie  colleague,  (Mr. 
it  was  the  duty  of  every  citizen  to  avert.  He  JJrown)  that  the  people  of  the  West  are  as  much 
knew,  he  said,  that  he  would  be  told,  that  the  devoted  to  the  general  interests  of  the  Union, 
people  of  the  United  Stales  are  too  virtuous  and  wouldmake  as  many  sacrifices  to  maintain 
and  enlightened  to  permit  a  sectional  debt,  j  them  as  any  other  portion  of  the  American 
however  large,  to  influence  their  political  feel-  j  population;  and  if  it  would  not  be  deemed  in- 


ings  or  conduct;  but  he  was  not  yet  prepared 
to  believe  that  human  nature  is  so  far  sublim 
ated  in  the  United  States  as  to  be  exempt  from 
the  influence  of  interest,  passion,  or  ambition. 
He  said,  that  if  any  illustration  were  necessa 
ry  to  show  the  effect  of  a  land  debt  on  legisla- 


vidious,  he  would  say  more.  They  have  _ 
en  many  and  signal  proofs  of  it.  But  this,  he 
said,  is  no  argument  in  favor  of  the  credit  sys 
tem — £  system  that  would,  in  its  ultimate  ten 
dencies,  conflict  with  those  national  feelings 
that  now  animate  them — but  on  the  contrary,  it 

Having  now 


tion  and  local  parties,  an  experiment  had  been   is  a  persuasive  one  against  it. 
made  in  Kentucky,  which  furnished  a  very  ap-  j  the  warm  and  cordial  support  of  the  West,  it 
posite  exemplification  i  would  not  be   wise  to  persist  in  a    course  of 

In  that  state  there  was  a  large  body  of  the  j  measures  that  must  inevitably  tend  to  stifle 
people  indebted  to  the  government  for  lands  j  those  moral  impulses  which  prompted  to  it. 
purchased  south  of  Green  River,  on  credit.  !  He  would  invigorate  the  arm,  and  distend  the 
The  debt  had  been  due  many  years,  but  at  heart  of  Western  patriotism,  and  not  paralyze 
every  session  of  the  legislature,  indulgence  had  the  one  and  contract  the  oilier,  nor  nerve  the 
been  granted  since  the  vJcbt  became  due.  j  one  and  steel  the  other  against  the  common  in- 
Members  had  been  elected  to  the  legislature, 
with  instructions  to  obtain  a  further  indulg 
ence.  A  promise  to  procure  it>.  or  the  belief 
that  they  would  make  all  necessary  efforts, 
was  generally  a  "sine  qua  non"  to  their  election, 
The  Green  River  country  had  become  very 
strong,  and  its  indulgence  had  become  a  sort  of 
party  question — a  political  hobby.  It  is  be 
lieved  that  it  has  frequently  been  the  subject  of 
"legislative  compromises" — the  consideration 


.for  other  laws,  and  other  laws  the  consideration 
for  that.  He  believed  that  it  is  now  consider 
ed  almost  a  matter  of  course  and  of  right.  He 
had  no  doubt  that  it  had  frequently  been 
granted  against  the  free  consent  of  the  legisla 
ture,  and  had  been  the  means  of  passing  laws 
that  otherwise  would  not  have  been  enacted. 
That  state  .-had  not  yet  gotten  the  debt  in;  he 
had  doubts  whether  it  ever  would  —  the  pros 
pect  being  no  better  now  than  it  was  many 
years  ago. 

He  said,  that  he  believed  that  the  Green 
River  indulgence  had  been  sometimes  necessa 
ry,  and  he  did  not  know  that  it  is  not,  even 
yet,  proper;  but  he  had  alluded  to  it  to  show 
the  effect  of  a  land  debt  on  revenue,  on  party- 
elections  and  on  legislation.  If,  said  he,  Bufeh 
have  been  the  fate  and  effects  of  a  Green  Riv 
er  land  debt  in  .Kentucky,  what  must  be  the 
consequence?  in  the  United  States  of  a  Western 


viobt?     Are   ihc 


onth   and  north   of 


t crests.  He  won  Id  repeat,  that  he  did  not  be 
lieve  that,  if  the  land  debt  should  increase  to 
any  amount,  the  Western  people  would  resist, 
by" force,  its  collection,  or  desire  the  subversion 


Bui 


by., 

of  the  government  to  avoid  its  payment. 
he  asked,  if  it  could  be  prudent,  in  a  govern 
ment  depending  for  its  existence  and  support 
on  public  opinion,  to  make  it  the  interest  of  the 
people  to  embarrass  its  regular  operations,  or  to 
resist  its  laws?  And,  said  he,  niigbt  not  a 
large  debt,  hanging  over  one  nioity  of  the 
nation,  create,  throughout  the  whole,  interests, 
and  feelings,  and  conduct,  not  calculated  to  ad 
vance  the  happiness  of  the  people,  or  strength 
en  constitutional  authority? 

Every  government  that  ever  had  to  encoun 
ter  a  large  popular  debt,  had  felt  it  to  be  a 
tent  adversary.  Why  did  Lycugus  arid 
Ion  abolish  all  debt  in  the;  organization  of  their 
systems  of  government?  Why  did  the;  Roman 
Plebians,  after  being  oppressed  by  their  Patri 
cian  creditors,  raise  the  standard  of  revolt,  and 
retreat  tomons  sacer?  And  why  did  the  Patri 
cians  ultimately  submit?  And  what  were  the 
progress  and  effects  of  the  long  struggle?  If, 
said  he,  the  land  debt  bo  permitted  to  accumu 
late,  and  its  enforcement  be  attempted,  the  West 
may  not  resist;  it  may  not  murmur;  it  may  not 
evince  sensation,  even;  but  the  debt  might  not 
be  collected,  and  he  did  not 


be  a  po- 
and  So- 


tric^. 


wish  to   see   the 
no   necessit      to 


ON  THE  LAND  BILL. 


make  any  experiment  on  th'o  temper  of  the 
West.  "Western  freemen  would  never  willing 
ly  "give  up  the  ship."  They  would  never  se 
cede,  unless  disfranchised  by  those  who  ought 
to  be  their  friends;  and,  if  they  ever  should 
retreat  to  the  sacred  mountain,  fie  hoped  there 
would  be  one  Mcnenius  and  one  Valerius 
among  them,  who  would  be  able  to  rally  them 
again  under  the  standard  of  the  Union. 

But  it  could  not  be  the  interest  of  the  United 
States  to  persist  in  the  system  which  could 
produce  any  consequences  which  it  is  the  duty 
of  every  enlightened  and  patriotic  statesman  to 
prevent — a  system  that  would  engender  dis- 
ecrd  and  party  feuds,  and  excite  jealousies  and 
discontent,  and  perhaps  insubordination. 

Every  consideration  which  could  operate  on 
his  mind,  he  said,  strengthened  his  conviction 
that  the  credit  system  could  not  be  executed, 
cr>  if  executed,  that  it  would  do  much  mis- 
cfcief.  In  its  execution,  it  would  defeat  some 
of  the  ends  for  which  it  was  established;  and 
he  thought  it  required  no  argument  to  show 
that  a  system,  whose  operations  are  incompat 
ible  with  its  designs,  and  subversive  of  the 
first  purposes  for  which  a  government  was  in 
stituted,  and  which  counteracts  the  policy  of 
wise  legislation,  ought  to  bo  abolished.  That 
the  credit  system  is  such  an  one,  he  had  en 
deavored  to  show.  It  ought,  therefore,  he 
thought,  to  be  repealed,  if  one  less  exception 
able  could  be  substituted.  He  thought  the 
bill  under  consideration  furnished  such  an 
one.  It  remained,  therefore,  for  him  to  offer 
some  reasons  to  show  that  the  mode  proposed 
is  better  than  that  in  operation. 

Mr.  Robertson  said,  if  he  had  been  success 
ful  in  his  attempt  to  prove  that,  the  credit  sys 
tem  is  defective,  because  it  is  a  credit  system, 
it  would  be  unnecessary  to  consume  time  by  an 
effort  to  show  that  the  cash  system  will  be 
preferable,  so  far,  because  it  will  be  a  cash 
i^ystem.  As  the  strongest  general  considera 
tions  which,  in  his  opinion,  conduced  to  show 
the  superiority  of  the  cash  over  the  credit  sys 
tem  had  already  been  anticipated  in  his  en 
deavor  to  exhibit  some  objections  to  credit  in 
the  foregoing  part  of  his  argument,  he  would 
not  reiterate  them.  If  ho  had  shown  the  de- 
fectiveness  of  credit,  it  would  necessarily  fol 
low  that  the  proposed  system  is,  quo  ad  hoc, 
preferable. 

Upon  that  ground  he  was  willing  to  rest  the 
comparative  merits  of  the  two  systems,  so  far 
as  it  might  depend  on  the  two"  leading  and 
characteristic  features  of  credit  ond  cash. 
These  are  so  important  and  controlling,  that  a 
comparison  of  the  more  minute  traits  would  be 
unnecessary;  because,  whatever  might  be  its 
results,  they  could  have  no  influence  in  the 
decision.  But,  if  such  a  comparison  could  be 
at  all  material,  he  was  sure  it  would  result  in 
showing  the  superiority  of  the  proposed  over 
the  existing  system,  in  every  feature  in  which 
they  differ. 

The  principal  of  these,  in  addition  to  credit 
tind  cash,  is  the  minimum  quantity  of  land 
and  of  price.  The  reduction  of  each  in  the 
bill  under  consideration  is  intended  to  remove 


the  objections  that  had  been  urged  to  the  sub 
stitution  of  cash  for  credit.  And  in  this  it  is 
singularly  and  completely  successful. 

He  thought  that  it  would  be  fair  to  conclude 
that  the  bill  ought  to  pass.  That  it  ought, 
there  could  be  no  doubt,  unless  objections 
could  be  urged  to  it  more  formidable  than  those 
to  which  the  existing  law  is  liable,  or  argu 
ments  against  it  stronger  than  those  which 
were  pressed  against  the  latter. 

He  said  he  had  heard  only  two  objections  to 
the  proposed  system.  1st.  That  it  would  op 
press  the  poor  man,  by  giving  the  capitalist 
and  speculator  an  unreasonable  and  unjust  ad 
vantage  over  him.  2nd.  That  it  would  retard 
the  population  and  diminish  the  influence  of  tho 
Western  country.  He  believed  that  no  other 
objections  that  are  even  plausible  had  been  or 
could  be  made,  and  these  he  considered  by  no 
means  formidable.  He  thought  that  a  very 
slight  examination  would  be  sufficient  to  show 
that  they  are  both  evanescent.  He  expected 
results  from  the  cash  system,  in  its  operations 
on  the  poor,  the  rich,  and  the  Western  coun 
try,  the  opposite  of  those  apprehended  by  its 
opposers,  and  which  he  should  endeavor  brief 
ly  to  exhibit,  in  the  course  of  the  notice  ho 
should  take  of  the  objections. 

But  it  should  not,  said  Mr.  Robertson,  es 
cape  notice,  that  if  the  objections  are  in  them 
selves  true,  they  constitute  no  sufficient  argu 
ment  to  prevent  the  passage  of  the  bill;  for,  if 
the  interests  of  the  government  and  of  the  body 
of  the  people  require  its  passage,  it  would  be 
unreasonable  to  demand  or  permit  its  rejec 
tion,  merely  because  a  particular  class  of  tho 
community  or  district  of  country  might  be  in 
jured  bv  it.  Otherwise,  all  legislation  would 
not  only  be  nugatory,  but  unjust;  because 
every  general  law,  however  much  it  may  pro 
mote  the  interests  of  the  majority,  must  be  in 
compatible  with  some  individual  rights  or  in 
terests  in  society.  Therefore,  the  political 
axiom — that  private  interests  should  be  sacri 
ficed  on  the  altar  of  the  public  good — would 
be  a  sufficient  answer  to  the  objections,  if  they 
were  founded  upon  correct  hypotheses. 

But,  he  said,  if  it  were  material  to  take  more 
particular  notice  of  the  objections,  he  thought 
it  was  as  nearly  demonstrable  as  any  moral  or 
political  proposition,  from  its  nature,  could 
be,  that  the  cash  system  would  not  only  dimin 
ish-  and  embarrass  speculation,  but  promote 
the  interests  of  the  poor,  and  the  permanent 
and  substantial  welfare  of  the  Western  coun 
try. 

He  believed  that  no  other  system  would  tend 
more  to  those  results,  unless  it  should  be  one 
by  which  the  public  lands  should  be  gratui 
tously  distributed;  and,  for  such  an  one,  he  was 
unwilling  to  believe  that  there  would  be  any 
serious  advocates.  If  there  were  any  such,  ho 
would  recommend  to  them  the  immediate  abro 
gation  of  the  credit  system,  and  the  substitu 
tion  of  an  Agrarian  law. 

But,  said  he,  the  public  land  being  a  com 
mon  fund,  and  Congress  being  its  depository, 
it  is  their  duty  to  dispose  of  it  in  such  a  man 
ner  n*  to  promote  th»  common  interest,  ^"hey 


38 


SPEECH  OF  MR. 


are  bound  by  their  trust  to  sell  it,  and  to  those 
who  can  pay  for  it.  And  ho  thought  it  could 
not  be  matter  of  complaint  that  Congress,  and 
not  any  particular  class  of  private  individuals, 
should  prescribe  the  terms  of  sale,  and  that 
such  terms  should  be  offered  as  -would  pro 
duce  the  most  general  good.  Neither  the  poor 
nor  the  rich  have  aiiy  right  to  complain,  if 
credit  should  be  refused.  If  they  are  unwilling 
to  purchase  the  public  lands  on  the  terms  pro 
posed,  they  will  retain  their  money,  and  the 
public  its"  lauds,  and  no  injury  is  done  to 
either. 

By  the  poor,  he  said,  he  understood,  as  re 
gards  the  argument,  not  that  class  of  society 
who  are  in  a  state  of  pauperism,  but  those  who 
are,  comparatively,  in  a  state  of  mediocrity,  and 
are  unable  to  purchase  land  for  any  other  pur 
pose  than  to  occupy  it.  Under  the  credit  sys 
tem,  a  man  who  has  no  money  cannot  pur 
chase;  to  be  able  to  buy  public  lands  he  must 
have  funds,  and  as  much  as  will  be  required 
by  the  cash  system.  Gentlemen,  he  said,  had 
argued  against  the  bill  as  if  they  believed  that, 
under  the  credit  system,  a  poor  man,  without 
money,  could  purchase  a  home;  and  that,  there 
fore,  he  will  be  excluded  by  the  bill  from  all 
£articipation  in  the  purchases  of  public  lands, 
ut  he  is  already  excluded.  Who  can  pur 
chase  now,  that  may  not  buy,  and  as  easily, 
under  the  cash  system?  Who  will  be  excluded? 
Xot  the  man  without  money;  he  cannot  pur 
chase  now.  Not  the  man  who  is  now  barely 
able  to  pay  the  first  instalment  for  one  hun 
dred  and  sixty  acres,  at  the  minimum  price, 
for  he  would  proceed  to  show  that  the  same  in 
dividual  might  purchase,  with  more  certainty 
and  more  to  his  advantage,  under  the  pro 
posed  system. 

Under  the  existing  law,  a  man  cannot  pur 
chase  for  himself  a  home,  even  if  there  were 
TIO  competition,  unless  he  be  able  to  advance 
eighty  dollars;  and  if  he  be  a  prudent  man,  he 
will  not  purchase  at  all,  if  that  eighty  dollars 
be  the  whole  amount  of  his  pecuniary  re 
sources;  for,  before  he  can  procure  a  title,  he 
must  pay  two  hundred  and  forty  dollars  more, 
in  three  installments,  or  forfeit  his  land*  with 
his  80  dollars  advanced,  should  he  be  unable 
to  make  punctual  payment  of  the  whole  price. 
If  the  credit  should  tempt  him  to  make  the 
purchase,  under  the  expectation  of  making 
the  money  to  discharge  the  debt  he  incurs,  or 
of  indulgence  if  he  should  fail,  he  subjects 
himself  to  all  loss  and  embarrassment  that  may 
result  from  accident  or  from  the  fluctuation  and 
depreciation  of  the  currency,  and  places  him 
self  in  the  power  of  the  usurer,  the  speculator, 
and  the  government.  The  laud  would  not  be 
his,  and  he  could  not  be  considered  an  inde 
pendent  citizen  in  the  sterling  import  of  those 
words.  The  little  pittance  he  may,  by  indus 
try  and  economy,  be  able  to  save,  he  cannot 
consider  his  own  until  he  shall  have  paid  for 
his  land;  the  land  is  not  his  until  he  can  get  a 
patent.  He  may  be  dependent  on  the  capital 
ist  for  money  to  procure  the  title  and  save  his 
home  from  forfeiture,  or  must  supplicate  the 
Indulgence  of  Congress;  and,  nt  last,  nftor 


[having  removed  his  family  many  hundred 
miles,  and  improved  land  which  he  considered 
:his  own,  either  the  hungry  speculator  may 
take  it  from  him,  or  the  humanity  of  the  gov 
ernment  must  interpose.  And  if  he  should  dio 
before  he  shall  have  made  complete  payment, 
he  leaves  his  helpless  family  in  a  strange  and 
i  foreign  land,  without  a  home. 

But  the  credit  system  induces  the  specula 
tors,  as  well  as  others,  to  bid  a  higher  price  at 
the  sales  than  would  be  given  in  cash,  and 
frequently  more  than  the  value  of  the  land. 
Hence  the  poor  man,  Avith  his  eighty  dollars, 
is  almost  entirely  excluded  from  the  sales.  Ho 
is  afraid  or  unable  to  compete  with  the  rich 
man,  or  with  the  speculator.  The  consequence 
is,  that  the  rich  and  adventurous  monopolize 
the  best  land,  and  leave  only  the  refuse  to  the 
other  class. 

The  speculator  buys  as  much  land  as  ho 
can  make  the  first  payment  for,  under  Jtho 
expectation  of  being  able,  before  the  expira 
tion  of  five  years,  to  sell  it  for  a  higher  price. 
He  has,  by  law,  five  years  within  which  to 
make  this  experiment,  and  as  much  longer  as 
he  can  prevail  upon  Congress  to  indulge  him; 
hence,  it  so  often  happens  that  the  first  is  the 
last  payment,  and  that  indulgence  becomes  so 
necessary  and  so  frequent,  and  that  the  land 
revenue  fails.  If  the  purchaser  for  specula 
tion  can,  while  the  government  will  indulge 
him,  sell  the  land  to  a  man  who  wants  a  home, 
but  was  not  able  to  bid  against  him  at  the  pub 
lic  sale,  he  will  sell  on  a  long  credit,  at  a 
higher  price  than  he  promised — a  much  high 
er  price — and  by  transferring  his  certificate, 
will  interpose  the  poor  man  between  himself 
and  the  government,  with  a  liability  to  pay 
the  remaining  installments,  with  all  the  accu 
mulation  of  interest,  and  with  all  other  liabil- 
ties  incident  to  the  credit.  If  he  cannot  sell  for 
more  than  he  promised  to  give,  he  repeats  his 
application  to  Congress  for  indulgence,  and 
they  continue  to  grant  it.  But,  if  it  should  be 
refused,  and  the  land  forfeited,  the  adventurer 
will  only  have  lost  the  amount  of  the  first  pay 
ment  which  he  had  advanced. 

What  better  terms  can  the  speculator,  said 
he,  desire?  What  can  more  encourage  specu 
lation,  or  oppress  the  poor  and  honest  man, 
than  the  credit  system?  It  increases  the  facil 
ities  and  inducements  to  speculation;  it  in 
creases  the  means  and  number  of  speculators. 
This  is  observed  every  day.  Alabama  speaks 
a  L'uiguage  that  cannot  be  misunderstood — 
$70  an  acre  promised>  never  to  be  paid! 

But,  said  Mr.  Robertson,  the  cash  system 
now  offered  is  better  for  the  honest  purchaser, 
not  only  because  it  would  enable  him  to  get 
land  with  more  certainty  and  security,  and 
better  land,  but  because  it  would  put  it  in  his 
power  to  get  it  cheaper,  for  two  reasons:  1st. 
The  minimum  is  less;  and  2nd,  land  will  sell 
on  a  credit  for  a  price  higher  than  the  cash 
value,  by  more  than  the  interest  of  that  valua 

Under  the  proposed  system,  a  man  can  pur 
chase;  eighty  acres  of  land,  if  he  can  pay  one 
hundred  dollars;  he  gets  his  patent,  and  has 
n  home.  He  i*  nn  Independent  citizen)  not  in 


ON  THE  LAND  BILL. 


the  power  of  capitalists  or  the  government,  in 
regard  to  his  title.  Even  if  credit  would  not 
enhance  the  price,  it  is,  nevertheless,  a  fact 
worthy  of  notice,  that  under  the  cash  system, 
a  purchaser  can  buy  a  home  for  only  one-fifth 
more  than  the  fourth  of  the  credit  price,  which 
fourth  must  be  advanced.  It  is  true,  he  will 
only  get  half  the  quantity,  but  he  does  not 
give  half  the  price,  and  the  smallness  of 
the  tract  is  no  objection,  but  a  strong  argu 
ment  in  favor  of  the  proposed  system,  as  it  re 
gards  the  poor — for  thereby  a  man  will  be  en 
abled  to  procure  a  home,  wrho  could  not,  or 
ought  not  to  attempt  it  now,  and  those  who 
can  purchase  more  than  the  minimum  quanti 
ty  will  have  the  liberty  to  do  so. 

But  the  best  land  is  sold  at  the  public  sales 
to  the  highest  bidder,  and  the  credit  would 
cause  it  tosell  for  a  higher  price  than  it  would 
for  cash,  by  at  least  one-fifth.  This  is  the  dif 
ference  between  the  price  of  eighty  acres  pur 
chased  under  the  cash  system,  and  the  fourth 
of  the  price  of  one  hundred  and  sixty  on  cred 
it.  The  consequence  is,  that  a  man  will  be 
able,  under  the  proposed  system,  to  buy  eighty 
acres  at  public  sale,  for  the  amount  of  only 
one-fourth  of  the  price  of  one  hundred  and 
sixty  on  credit.  In  the  one  case,  the  pur 
chaser  has  parted  with  a  certain  sum  of  money, 
and  obtained  in  exchange  a  title  to  eighty 
acres  of  land;  in  the  other,  he  has  disbursed 
the  same  sum,  as  one-fourth  of  the  price  of 
one  hundred  and  sixty  acres,  to  which  lie  has 
n.o  title,  and  for  which  he  cannot  obtain  a  pat 
ent  until  he  shall  have  paid  the  remaining 
three-fourths.  Which  would  the  poor,  the  hon 
est,  the  free  man  prefer?  Could  there  be  any 
hesitancy  in  the  option?  Would  he  not  choose 
the  cash  system?  And  would  not  the  specula 
tor,  for  the  same  reasons,  prefer  the  credit  sys 
tem?  . 

But,  said  Mr.  Robertson,  it  had  been  urged 
by  the  gentleman  from  Tennessee,  (Mr.  Jones) 
that,  by  requiring  cash,  too  much  power  is 
given  to  money;  that  the  capitalist  will  buy 
all  the  good  land,  because  the  poor  man  will 
be  unable  to  bid  against  him  beyond  the  small 
sum  he  may  have.  This  argument,  he  said, 
was  more  plausible  than  sound,  and  had  been 
already  anticipated  and  answered.  But  the 
imposing  manner  in  which  it  had  been  exhib- 
ed  entitled  it  to  a  direct  reply. 

Money,  said  he,  wrill  have  power  as  long  as 
it  i's  money.  It  is  that  which  gives  it  value. 
Its  power  cannot  be  destroyed  without  destroy 
ing  its  value.  But  he  felt  sure  that  its  influ 
ence  in  relation  to  the  public  land  and  its  pur 
chasers,  will  not  bo  augmented,  but  greatly 
diminished,  by  the  passage  of  the  bill  under 
consideration,  in  the  reduction  which  it  would 
effect  in  the  number  of  speculators  and  in  the 
extent  of  their  purchases,  in  a  ratio  of  at  least 
three  to  one,  and  in  the  reduction,  in  a  ^corres 
pondent  ratio  of  the  number  of  other  purchasers 
and  the  extent  of  their  purchases.  Under  the 
credit  system,  a  speculator,  with  fifty  thousand 
dollars,  will,  at  the  minimum  price,  purchase 
one  hundred  thousand  acres  of  land,  the 
amount  of  his  money  being  sufficient  to  com 


plete    the  first    insallment  on  that  quantity. 

Under  the  cash  system  he  will  be  able  to  pur- 
i  chase  only  forty 'thousand  acres.  The  same 
i  quantity  of  money,  then,  will  purchase  almost 
i  three  times  as  much  land  under  the  credit,  as 

it  will  under  the  cash  system.  The  ad- 
j  vantages  of  credit  to  the  purposes  of  specula- 
•!  tion  will  give  the  same  sum  the  power  to  pur- 
j  chase  the  full  triple  quantity.  To  purchase, 
'one  hundred  thousand  acres  under  the  cash 
|  system,  there  will  be  required  five  men  with 
;  $25,000  each.  Under  the  credit  system,  it  will 

be  purchased  by  two  men  with  the  same  sum. 

If  credit  did  not  increase  the  price,  then  two 

speculators  can  monopolize  as  much  land  un- 

Ider  the  credit  system  as  five  men  under  the 
cash  system;  and  the  same  quantity  of  money 
j  in  circulation  would,  therefore,  increase  tho 
'number  of  speculators,  and  the  extent  of  their 
i  purchases,  in  the  proportion  of  five  to  two,  by 
i  allowing  credit;  and,  as  before  stated,  the  cf- 
j  feet  of  credit  would  swell  the  number  to  the 
j  proportion  of  three  to  one.  Can  any  one,  said 
i  lie,  fail  to  perceive  the  effect  which  credit  has 
:  in  increasing  the  number  and  power  of  specu 
lators,  and  thereby  the  power  of  their  money? 
j  Will  not  the  poor  man  have  a  greater  number 
I  of  competitors?  Will  there  not  be  less  land 
left  for  him  to  purchase?  And  will  not  his 
chances  of  buying  good  land  be  diminished? 
And  would  not  the  number  of  purchasers  for 
i  use  be  greatly  diminished,  and  thereby  the 
I  population  of  the  West  be  retarded?  Under 
!  the  credit  system,  the  capitalists  can  monopo- 
jlize,  with  the  same  sum,  more  land  than  they 
'could  for  cash,  in  the  proportion  of  a  hundred 
|  to  forty.  The  capital,  then,  which  would  pur 
chase  100,000  acres  on  credit,  would,  on  the 
cash  payment,  leave  60,000  acres  unappropri 
ated,  which  the  settlers  could  purchase,  with 
out  competition  with  the  non-resident  monied 
men.  As  to  that  part  of  the  argument  which 
assumes  that,  in  a  contest  for  a  particular  tract 
of  land,  an  advantage  is  given  to  the  rich  over 
the  poor  man,  by  requiring  cash,  he  said  that 
the  same  objections  would  apply  with  equal 
j  force  to  credit.  For  if  the  poor  man  could  not 
;  compete  with  the  rich  man,  after  he  had  gone 
I  in  his  bid  to  the  extent  of  his  funds,  when  the 
whole  amount  is  to  be  advanced,  he  must  be  in 
the  same  predicament  if  only  one-fourth  of  tho 
amount  be  required.  In  the  latter  case,  after 
he  had  been  forced  up  by  the  capitalist  to  as 
much  as  he  could  pay  the  first  installment  of, 
he  could  bid  no  higher.  But  the  objection,  he 
said,  would  have  much  inore  force  in  it,  if 
urged  against  the  credit  system;  because,  by 
requiring  cash,  the  number  of  speculators  is 
reduced,  and  most  of  their  schemes  and  con 
trivances  will  be  baffled. 

If  any  further  illustration  on  this  subject 
were  necessary,  he  said  that  the  gentleman 
who  made  the  objection  had  himself  furnished 
a  very  striking  one.  That  gentleman  had 
said,  that  if  the  cash  system  should  be  adopt 
ed,  the  United  States  would  never  collect  the 
money  due  for  land  which  had  been  sold,  be 
cause  that  system  would  depreciate  the  value 
of  the  land  for  which  the  debt  wa*  contracted. 


SPEEBH.  OF  MR.  ROBERTSON, 


This  argument,  ejp 
it  cuts  its  own  throat. 


he,  is  a  "fdo  de  se"  — 
For  why  will  the  cash 
aystem  tend  to  depreciate  the  land  sold  under 
the  credit  system?  It  is  because  it  gives  more 
advantages  to  the  purchaser  —  because  it  is  a 
better  system  for  the  purchaser.  This  is  the 
reason,  and  the  only  one.  It  does  give  more 
advantages  to  the  purchaser;  not  the  specula 
tor,  but  the  man  who  may  desire  to  purchase 
for  his  own  use;  it  gives  him  more  good  land 
to  make  his  choice  in  at  a  less  price,  with  less 
competition,  with  more  certainty,  and  less 
embarrassment. 

Mr.  Robertson  said,  that  every  view  of  the 
subject  he  could  take  helped  to  .show  that  the 
objection  to  the  cash  system,  which  is  founded 
on  the  assertion  that  it  will  not  be  advan 
tageous  to  the  poor  man,  is  indefensible,  and 
that  this  system  is  strongly  recommended  by 
the  advantages  it  will  secure  to  all  classes  of 


The 


dound  to  the  advantage  of  the  West.  If  lik 
only  object  were  the  aggrandisement  of  the 
West,  he  would  vote  for  it.  He  believed  that 
nothing  which  Congress  could  do  by  legisla 
tion  would  more  certainly  promote  the  pros 
perity  and  independence  of  the  West 

The  member  from  Tennessee,  (Mr.  Jones,) 
had  expressed  astonishment  that  the  Western 
members  should  differ  in  their  opinion  on  tin  3 
subject.  He  felt  as  much  surprise  at  it  as  I  ho 
gentleman  could  feel.  He  coidd  not  perceive 
how  the  apprehension  could  be  entertained  by 
a  Western  man,  that  the  cash  system  would 
injure  the  Western  country.  He  was  as  much 
devoted  to  Western  interests  as  any  of  its  rep 
resentatives.  He  claimed  it  as  his  duty  to  be 
so.  He  had  been  charged, 
was  known  that  he  was  in 
system,  with  anti-Western  feelings  and  policy. 
tie  was  as  sensitive  on  that  subject  as  qn  any 
other;  but  while  he  would  not  say  he  w^s  im- 


obliquely 
favor  of 


snce  it 
the  cash 


purchasers,    except   the    speculators. 

could  not  be  entirely  put  down;  to  frustrate   perturbable,  he  would  say  that  such  charges  or 
them  is  only  a   secondary  object.     But,  if  it  j  insinuations,  fulminated  from  the  press  t>r  tho 
were  a  primary  one,  a   more  effective  method  |  stump,  could  not  alter  his  opinion  or  his  vote. 
than  the  cash  system  cauld  not  well  be  devised,  I     He  was  not  to  be  driven  from  his  purpose,  or 


The  only  remaining  topic,  he  said,  is  the  ef 
fect  that  the  cash  system  would  produce  in  the 
Western  country.  He  repeated,  that  its  ef 
fect  on  the  "substantial  interests  of  the  West 


deterred  from  doing  his  duty  by  denunciation, 
or  threats  of  defection  of  friends. 

He  said  he  respected,  as  much   as  any  rep 
resentative  should  do,  the  deliberate  and  tern 


would  be  beneficent;  but  if  it  should  be  detri- 1  perate  voice  of  public  sentiment.  But  he  be- 
mental,  by  checking  population,  he  could  not,  !  lieved  that  public  sentiment,  in  Kentucky, 
for  that  cause  alone,  vote  against  it.  This  ef- 1  would  be  decidedly  in  favor  of  the  cash  sys- 
fect  could  not  change  his  opinion  of  duty,  but  tern,  whenever  understood  and  tried.  Howev- 
would  only  tend  to  diminish  his  solicitude  for  |  er,  he  must  say,  that  the  only  way  to  change 
the  passage  of  the  bill.  He  did  not  come  here  j  his  vote  wquld  be  to  change  his  opinion, 
to  legislate  for  any  particular  section  of  coun- 1  Did  his  colleagues,  he  asked,  suppose  that 
try,  or  portion  of  the  people  of  the  Union,  but  j  they  gave  evidence  of  more  attachment  to  iho 
for  the  whole.  The  laws  which  his  vote  might  |  West  by  their  votes  than  he  felt?  He  hoped 
contribute  to  pass  would  operate  on  all;  and,  (they  would  do  him  the  justice  to  believe  that 
therefore,  it  would  be  but  right  that  the  j  he  was  as  much  devoted  to  the  West  as  any  of 


interests  of  all  should  be  consulted.  As  a  citi- 
izen,  he  might  delight  to  obey  the  dictates  of  his 
local  feelings  or  personal  wishes,  but,  as  a  leg 
islator,  he  felt  bound  to  submit  his  conduct  to 


the  guidance  of  other  and  higher  considera 
tions. 


its  citizens.  Why  should  he  not  be?  He  had 
as  great  a  stake  beyond  the  mountains  as  any 
other  man,  and  he  Avas  bound  to  the  West  by 
as  many  and  as  tender  ties. 


country  of  his  birth — the  home  of  "wife, 
dren,  and  friends?"     Did  it   not   embosor 


Was  it  not  the 
chil- 
om  all 

But,  if  he  were  at  liberty  to  act  on  selfish  !  that  he  held  most  dear?  And  did  it  not  con- 
principles  to  promote  local  interests,  it  would  j  tain  the  sacred  spot  in  which  the  relics  of  his 
be  his  first  and  paramount  duty  to  look  to  his  I  father  reposed?  He  could  yield  to  none  in  de- 

1      J_  _  _  _.    f*  1      •  •  '.I-  t  j_*  i  •  i.  *1  _        1     *.i_          •         j_  TT          1  1       'j 


owTn  state,  and  to  confine  his  views  within  her 

periphery;  for,  if  he  represented,  exclusively, 

any  local  interest,    it  was   that  of  Kentucky. 

And  if  such,  he  said,  were  his  condition,  and 

such  his  duty,  and  it  were  true  that  the  cash  ,  *o  ^^..mniu,  ^^  v^mc*,^  ^m^nv^,  *>,o  ^v/^no,- 

law  would  check  population,    he   would  not  tion  virtuous  and  hospitable — itsijien  are  brave, 

hesitate  to  support  the  bill;  he  would  hail  its  \andits  women  chaste.     Bound  tq  him  by  such 


votion  to  its  soil  audits  interests.  He  loved,  it 
not  only  instinctively,  because  it  was  his 
birth-place  and  home,  but  rationally,  because 
it  was  the  fairest  portion  of  the  globe.  Its  soil 
j  is  luxuriant,  its  climate  salubrious,  its  popula 

\    A    •  '        J  11  *  i          1      1  *  i  I 


passage  with  acclamations  of  joy.  For,  what 
would  more  promote  the  prosperity  of  Ken 
tucky,  than  a  system  Avhich  would  prevent 
that  efflux  of  money  and  of  population  which 
had  already  sp  much  exhausted  her,  and  which 
was,  to  a  great  extent,  the  effect  of  the  system 
in  operation?  So  far  as  the  cash  system  would 
diminish  emigration  and  sales,  it  would  tend 
to  diminish  the  drain  of  people  and  money  from 
Kentucky.  But,  he  said,  he  was  sure  that  the 
law  would  not  have  any  deleterious  operation 
.on  Western  interests,  by  checking  any  popula 
tion  or  preventing  any  sales  that  would  re- 


ties,  and  thus  deserving  his  affection,  he  would 
never  desert  its  cause.  As  long  as  he  should 
continue  in  its  service,  he  would  be  faithful  to 
its  interests.  He  would  advocate  and  pro 
mote  them,  as  far  as  might  be  consistent  with 
the  general  welfare,  and  he  believed  he  wa.s 
doing  it  by  supporting  the  cash  bill;  for  he  be 
lieved  that  the  West  never  would  attain  the 
high  destinies  before  it  if  the  system  of  credit, 
which  had  already  so  much  embarrassed  and 
enfeebled  it,  should  be  continued.  Why  is  it, 
said  he,  that  that  country  is  now  so  much  in 
debt?  Why  is  the  balance  of  trade  so  much 


OX  THE  LAND  BILL, 


against  it?  Why  is  its  currency  so  much  de 
ranged  and  depreciated?  Why  is  such  a  lan 
guor  pervading  that  rich  and  resourceful 
country? 

He  knew  that  these  were  effects  of  more 
causes  than  one;  the  general  system  of  credit 
was  one;  but  he  had  no  doubt  that  one  of  the 
most  prolific  sources  of  the  calamities  with 
which  the  West  is  afflicted,  is  the  credit  on  the 
public  lands.  This  had  tempted  them  to  go 
beyond  their  means,  and  contract  debts  which 
they  could  not  pay;  it  had  depreciated  the 
Western  paper  currency,  and  had  tended  to 
augment  and  vitiate  that  currency.  Could  any 
one  fail  to  see  its  operation  in  producing  these 
effects?  He  would  ask  his  colleagues  whether 
the  Western  country  would  not  nqw  be  in  a 
better  condition,  if  there  never  had  been  any 
credit  given  in  the  sale  of  public  lands?  Would 
it  not  be  more  independent,  and  have  more  and 
better  money?  Would  it  not  owe  $22,000,000 
less?  He  said,  that  that  country  never  could 
be  restored  to  its  naturally  healthy  and  pros 
perous  state,  as  long  as  such  an  immense  debt 
is  suspended  over  it,  like  an  incubus,  which 
paralyses  its  best  fiscal  and  moral  energies. 
Is  it  not  desirable  to  extricate  it  from  this 
condition?  Is  it  not  the  duty  of  its  friends  to 
make  an  effort?  He  said  that  he  did  not  know 
anything  which  Congress  could  do,  that  would 
tend  more  to  this  result,  than  the  adoption  of 
the  cash  system.  That  will  prevent  the  accu 
mulation  of  the  debt,  and  tend  to  correct  and 
restore  the  Western  currency.  Should  it  be 
adopted,  those  who  migrate  from  the  East  and 
transplant  themselves  in  the  West,  would  buy 
only  as  much  land  as  they  could  pay  for;  the 
purchase  money  they  would  carry  with  them 
from  the  East,  and  all  they  could  make  on  the 
land  for  four  years,  would  add  to  the  resources, 
and  swell  the  currency  of  the  West,  by  being 
distributed  among  its  people.  But  if  this  sys 
tem  be  rejected,  then  the  Eastern  immigrants 
will  only  make  the  first  payment  with  their 
Eastern  funds;  they  will  generally  purchase  as 
much  land  as  they  can  make  the  first  payment 
for;  the  remaining  three-fourths,  for  which  they 
get  credit,  must  be  made  in  the  West,  and, 
when  paid,  abstracted  from  its  resources.  Is 
there  not  a  great  difference  between  adding  the 
three-fourths  to  the  capital  of  the  West,  and 
abstracting  them  from  it?  Will  not  the  credit, 
then,  always  oppress  the  West,  render  good 
money  scarce,  and  increase  the  amount  of  bad 
money?  Under  the  credit  system,  not  only 
is  an  immense  sum  annually  withdrawn  from 
the  West,  which,  under  the  cash  system,  would 
be  retained,  but  that  sum  consists  of  specie,  or 
the  best  paper  of  the  West.  The  withdrawal 
of  this  makes  a  vacuum,  which  must  be  filled 
by  an  augmentation  of  a  vacillating  paper  me 
dium.  This  augmentation  depreciates  and  vi 
tiates  the  currency;  this  currency  the  public 
debtor  must  take,  but  the  government  will  not 
receive  it  from  him  In  addition  to  those  con 
siderations,  he  said,  it  should  be  recollected, 
that  the  same  quantity  of  land  which  would 
draw  from  the  West  $800,000,  under  the  credit, 
would  only  take  $500,000  under  the  ca?h  xva- 
6 


tern.  t  W^as  he  not  justified  in  saying  that  the 
substitution  of  the  cash  svstein  would  melio 
rate  the  condition  of  the  Vest?  It  would  en 
able  it  to  owe  less,  have  fewer  and  better 
banks,  more  money  and  better  money,  and 
more  and  better  population. 

He  said,  there  was  another,  aspect  of  the 
subject  entitled  to  the  serious  consideration  of 
the  real  friends  of  the  West.  It  is  the  influ 
ence  which  the  credit  system  would  give  the 
East  over  the  West.  Some  of  the  causes  of 
this  influence  had  been  sufficiently  alluded  to 
in  considering  the  topics  of  discussion.  Ho 
hoped  gentlemen  would  recollect  them,  and 
make  the  xu'oper  application  of  them,. 

He  would  only  add,  that  a  largo  Western 
debt  would  give  the  Eastern  politicians,  in  a 
struggle  for  power,  a  powerful  weapon.  It 
would  render  it  impossible  that  the  West 
could  have  a  fair  and  equal  contest.  It  would 
be  the  talisman,  whose  spell,  in  the  hands  of 
dexterous  men,  might  be  subjugation  or  dis 
solution.  Such  men  would  not  only  have  the 
advantage  derived  from  the  debility,  languor, 
and  Distress  which  a  large  debt  would  pro 
duce  in  the  West,  but  they  could  hold  the  ap 
palling  sum  in  terrorem  over  the  devoted 
West,  and  say — pay,  or  submit.  Then,  said 
he,  might  you  see  enforced  the  maximum, 
"parcere  subjectis,  debellare  superbos."  He  said, 
he  hoped  that  these  consequences  would  never 
be  realized;  but,  as  a  Western  man,  he  was 
anxious  to  render  an  occurrence  of  them  im 
possible,  and  to  rescue  the  West  from  danger 
before  it  might  be  too  late.  He  said,  if  ho 
were  an  Eastern  man,  and  desired  supremacy 
over  the  West,  and  labored  under  such  a  desti 
tution  of  principle  as  to  resort  to  legislative 
power  to  effect  it,  he  knew  nothing  which  ho 
would  so  strongly  advocate  as  the  continuance 
of  the  credit  system.  He  would  make  the 
debt  as  large  as  possible.  To  counteract  such 
policy,  he  desired  the  cash  system  to  pass;  and, 
in  advocating  it,  he  felt  sure  he  was  advo 
cating  the  best  interests  of  the  West.  He 
said,  let  the  Western  people  get  out  of  (iebt. 
and  leave  their  posterity  free,  and  then  they 
would  have  power,  and  wealth,  and  indepen 
dence.  Nature  had  decreed  it,  They  will 
then  preserve  their  influence,  their  rank,  and 
their  public  spirit;  they  will  then  move  and 
act  in  the  majesty  of  their  native  and  charac 
teristic  independence;  they  will  be  a  great,  a 
powerful,  and  a  happy  people. 

Gentlemen  need  not  fear  that  the  march  of 
Western  power  or  population  would  be  retard 
ed  by  the  cash  system.  If  the  view  he  r^ad 
taken  of  the  whole  subject  be  correct,  the  ef 
fects  of  the  system  would  be>  very  different. 
He  could  not  see  how  the  system  could  im 
pair  the  power,  or  diminish  the  population  of 
the  West.  Would  it  impair  the  strength  of 
the  West  to  get  out  of  debt,  and  add  to  its  re 
sources?  Or  would  it  diminish  or  obstruct 
the  current  of  immigration  to  the  West,  to  of 
fer  to  the  immigrants  terms  of  purchase  more 
advantageous  to  them  and  to  the  country  to 
which  they  wish  to  go,  than  those  now  offered? 
Or  would  'it  check  population  to  prevent,  the 


SPEECH  OF  MR.  EOBERTSON. 


monopoly  of  large  tracts  of  good  land  by  spec 
ulators,  who  would  not  settle  on  them?  He 
said,  that  if  the  cash  system  would  prevent 
the  immigration  of  any  class  of  citizens  to 
Ihe  West,  it  would  be  a  class  that  would  not 
be  a  very  valuable  accession  to  the  strength, 
the  morals,  or  the  wealth  of  the  West,  but  who 
would  only  increase  the  Western  debt,  and 
diminish  the  real  and  substantial  resources  of 
the  Western  country. 

He  said,  that  the  Western  country  would 
populate  soon  enough;  men  would  go  to  it 
whenever  it  should  be  their  interest  to  go.  It 
is  not  good  policy  to  invite  or  decoy  them 
thither  any  sooner.  Let  the  principle  of  pop 
ulation,  and  the  rule  that  regulates  and  con 
trols  it,  have  their  natural  operation.  Do  not 
endeavor  to  increase  its  fecundity,  or  accel 
erate  its  results,  by  artificial  expedients.  It 
cannot  be  desirable  to  have  a  mushroom  pop 
ulation;  let  it  grow  gradually  and  naturally, 
and  it  will  be  homogeneous,  and  happy,  and 
strong.  Let  the  body  politic  work  its  own 
cure,  if  diseased.  There  is  a  recuperative 
spirit  in  it — a  vis  medicatrix  naturce,  that  will 
preserve  its  health  and  vigor.  He  did  not 
profess  to  know  much  of  political  pathology, 
but  he  thought  there  could  be  no  doubt  that 
the  resources  and  ultimate  power  of  the  West 
are  certain,  if  its  friends  would  forbear  their 
nostrums,  and  let  things  regulate  themselves 
according  to  the  natural  laws  of  health. 

Let  the  population  of  the  West  grow  on  its 
own  natural  resources,  without  the  artificial 
aid  of  a  delusory  credit.  The  surest  way  to 
increase  an  efficient  population,  which  alone 
will  strengthen  the  resources  and  power  of 
the  West,  is  to  expel  bloating  luxury  and 
speculation,  by  stifling  their  pander,  morbid 
credit,  and  encourage  industry,  virtue,  and 
ecnomy.  The  first  step  towards  this  policy 
is  to  extricate  the  West  from  debt,  with  all  its 


I  paraphernalia;  to  confine  its  expenditures 
within  its  actual  means,  and  make  its  citizens 
independent  cultivators  of  the  soil,  and  not 
the  tenants  of  the  speculator  or  the  govern 
ment.  The  cash  system,  so  far  as  it  could 
operate,  would  tend  to  these  wholesome  re 
sults,  by  distributing  the  lands,  in  small 
tracts,  among  the  people,  for  their  own  use, 
and  by  frustrating  speculation,  and  prevent 
ing  monopolies.  He  expected  much  good 
from  it.  He  hoped,  therefore,  that  it  would 
be  adopted. 

He  had,  in  an  immethodical  manner,  lie 
said,  offered  some  of  the  considerations  which 
would  influence  his  vote.  He  had  endeavor 
ed  to  show  that  the  cash  system  is  required 
by  the  fiscal  and  political  interests  of  the 
general  government — by  the  advantages  it 
would  afford  to  the  bona  fide  purchaser — and 
by  the  substantial  and  permanent  welfare  of 
the  Western  country.  Whether  he  had  been 
successful,  would  appear  from  the  decision  of 
the  committee.  Whatever  that  decision 
should  be,  he  would  be  content.  He  had  dis 
charged  his  duty  to  himself  and  his  country. 
If  he  had  erred,  he  should  be  supported  by 
the  approbation  of  his  conscience,  and  the 
clearest  convictions  of  duty;  and  he  believed 
he  would,  at  last,  be  sustained  by  the  opin 
ions  of  his  fellow-citizens,  and  the  verdict  of 
posterity. 

If  the  bill  should  pass,  he  hoped  that  his 
friends,  who  differed  with  him  on  this  inter 
esting  subject,  and  especially  the  Speaker, 
(Mr.  Clay,)  who  would  follow  him  in  the  de 
bate,  might  live  long  enough  to  witness  and 
to  enjoy,  the  benefits  which,  he  believed, 
would  result  from  it,  not  only  to  the  Union, 
and  to  the  poor  and  actual  settler,  but  to  the 
great  interests  of  the  West— to  its  strength, 
prosperity,  and  power,  and  to  the  indepen 
dence  and  happiness  of  its  people. 


PRELECTION, 


In  1821  the  Legislature  of  Kentucky  directed  a  committee,  appointed 
for  that  purpose,  to  obtain  information  and  report  concerning  the  best 
and  most  practicable  mode  of  organizing  some  system  for  popular  edu 
cation.  That  committee  reported  to  the  Legislature  of  1822-3,  facts 
communicated  from  gentlemen  in  other  States  where  Common  Schools 
had  been  tried.  The  report  was  referred  to  the  committee  on  Education, 
of  which  Mr.  Robertson  was  chairman,  having  been  elected  from  the 
county  of  Garrard  for  that  session,  after  having  resigned  his  seat  in  Con 
gress  for  an  entire  term. 

Mr.  Robertson  made  the  following  report,  which  was  adopted.  The 
circulation  of  that  report  awakened  public  attention  to  the  subject, 
which  finally  resulted  in  the  adoption  of  a  system  of  Common  Schools  in 
Kentucky.  And  in  these  proceedings  we  may  see  the  initial  steps  taken 
by  this  State  on  this  interesting  subject. 


REPORT  OF  THE  COMMITTEE  ON  EDUCATION 

IN  TH2 

HOUSE  OF  REPRESENTATIVES 


[Session  of  1823.] 


THE  select  committee  on  so  much  of  the 
Governor's  message  as  relates  to  Education)  to 
whom  was  referred  the  report  of  the  Commis 
sioners  on  Common  Schools,  have  considered 
the  subject  submitted  to  them,  with  as  much 
attention  as  the  short  time  allowed  them  for  de 
liberation  would  permit,  and  now  beg  leave  to 
make  the  following  report: 

It  can  scarcely  be  necessary,  in  this  en 
lightened  age,  to  present  to  a  free  people  any 
arguments  in  favor  of  a  general  diffusion  of 
knowledge,  farther  than  what  have  already 
been  advanced  by  the  commissioners;  and 
•were  there  even  any  peculiar  circumstances 
attending  the  situation  of  Kentucky,  which 
might  render  it  expedient  to  take  an  extensive 
survey  of  the  value  and  utility  of  common 
schools,  with  a  notice  of  their  history  and  ef 
fects,  moral,  social,  and  political,  your  com 
mittee  would  deem  it  only  necessary  to  call 
the  attention  of  the  community  to  the  ample 
and  judicious  remarks  upon  this  subject,  con 
tained  in  the  report  of  the  commissioners. 
Availing  themselves,  therefore,  of  that  valua 
ble  document,  which  presents  so  satisfactory 
and  imposing  a  view  of  the  subject,  they  will 
confine  themselves,  in  this  report,  to  a  few 
hasty  and  prominent  considerations,  supple 
mentary  to  the  suggestions  made  by  the  com 
missioners. 

Ever  since  the  period  when  the  intellectual 
and  moral  darkness,  which  hung  over  man 
kind  during  the  middle  ages,  was  dispelled 
by  the  light  of  science,  and  of  civil  and  reli 
gious  libfrty,  which  dawned  in  the  fifteenth 
century,  the  march  of  liberal  ideas  and  true 
philosophy,  although  slow,  has  been  steady 
and  constantly  progressive,  until  the  time  has 
arrived  when  the  rights  of  man  arc  generally 
understood,  and  he  is  restored,  in  some  por 
tions  at  least  of  the  civilized  world,  to  the  dig 
nity  of  his  nature,  and  elevated  to  his  just  rank 
in  the  scale  of  being.  This  happy  consum 
mation  has  not  been  the  result  of  blind  chance; 
but  of  the  natural  and  powerful  influence  of 
reason,  in  its  gradual  developments.  Igno 
rance  and  superstition  are  the  talismanic 
agents,  by  the  aid  of  which  the  ambitious 
demagogue  has  ever  been  enabled  to  deceive 
arid  control,  and  by  which  alone  tyrants  have 
subjugated  the  great  body  of  the  people.  No 
people  1v  ere  ever  long  free,  unless  they  were 
not  only  virtuous,  but  enlightened.  We  need 
not  r«ccr  te  the  ancient  histories  of  Greece  and  ' 


Rome,  for  an  exemplification  of  this  truth.  It 
is  abundantly  attested  by  the  records  of  more 
modern  times.  Wherever  ignorance  and  itsj 
concomitants  predominate,  no  matter  what 
may  be  the  name  or  the  form  of  the  govern 
ment,  the  destinies  of  the  many  are  controlled 
by  the  artifices  of  the  favored  few;  the  voice  of 
reason  is  hushed,  and  she  is  made  the  puppet 
of  passion,  and  prostituted  at  the  shine  of  am 
bition.  No  free  institutions,  however  perfect 
in  theory,  ever  were,  or  ever  can  be,  durable  or 
effective,  unless  the  public  mind  be  generally 
enlightened.  Ignorance,  if  predominant,  will 
inevitably  convert  a  free  and  happy  govern 
ment  into  the  most  oppressing  and  galling 
despotism. 

Under  a  form  of  government  like  ours, 
whose  very  basis  is  the  equality  of  the  citizens 
— whose  soul  is  public  opinion — it  is  more  pe 
culiarly  essential  that  knowledge  should  bo 
accessible  to  all.  If  the  great  mass  of  the  peo 
ple  be  ignorant,  liberty  will  soon  be  stifled; 
her  votaries  will  be  amused  with  her  shadow, 
while  her  substance  is  gradually  drawn 
away,  and  her  vitality  extinguished.  The 
great  objects  and  tendencies  of  education  are, 
not  only  to  enlighten,  but  to  liberalize  and 
expand  the  mind,  to  improve  the  heart,  and 
thereby  to  meliorate  and  dignify  the  condition 
of  society.  The  muses  are  the  natural  asso 
ciates  and  guardians  of  liberty.  Their  resi 
dence  is  her  favorite  abode.  To  enjoy  our 
rights,  we  must  understand  them  well;  to  se 
cure  and  protect  them,  we  must  not  only  feel 
their  value,  but  be  acquainted  with  their  ex 
tent  and  appropriate  limitation. 

That  theory  which  pronounces  all  men 
equal,  is  in  practice  a  delusion,  unless  all  have 
the  capacity  to  know,  and  thus  to  preserve  in 
violate,  their  civil  and  political  rights.  No 
species  of  inequality  is  so  much  to  be  dreaded 
in  a  popular  government,  or  deserves  so  high 
ly  to  be  deprecated  by  the  patriot  and  philan 
thropist,  as  the  inequality  of  mind  and  of 
mental  attainments.  Fortune  ever  has  been, 
and  ever  will  be,  unequal  in  the  distribution 
of  her  gifts;  but  this  inequality  should,  as 
much  as  possible,  be  counteracted,  and  its  an 
ti-republican  tendency  checked  and  restrained 
by  the  guardianship  and  benevolence  of  a 
provident  government.  The  intellect  of  everv 
citizen,  especially  in  a  republic,  is  the  prop 
erty  of  the  commonwealth.  Indeed,  the  cul 
tivated  minds  of  the  people  conatituta  the  chiof 


46 


REPORT  OF  THE  SELECT  COMMITTEE. 


treasure  of  a  free  state.  There  is  an  infinite  Kentucky;  and  we  may  confidently  indulge 
expansibility  in  the  mind  of  man;  and  it  is  the  hope,  that  our  University  is  destined  to 
among  the  hrst  and  most  important  duties  of  reflect  honor  on  the  State,  and  lustre  on  the 
the  government,  to  improve  the  elasticity  and 
cultivate  the  intellectual  energy  of  the  whole 
conimmunity.  Thus,  the  common  property  of 
society,  which  constitutes  the  basis  of  its 


society 

power  and  happiness,  will  be  indefinitely 
augmented.  Thus,  and  thus  only,  will  liberty 
•find  equality,  social  peace  and  permanent 
prosperity,  be  preserved 

"Knowledge  is  power;"  and  the  only  way 
to  preserve  an  equality  of  the  latter,  is  to  pro 
mote  a  general  diffusion  of  the  former.  But  a 
wholesome  development  of  the  moral,  physi- 

T  1      '          ,         1  1  j  IP  1  i  '        _  /»     _  11      J.  1       _      .  —T 


Union. 

But  while  we  are  thus  wise  and  generous  in 
the  patronage  of  the  higher  seminaries  of 
learning,  shall  we  neglect  those  of  a  more 
humble,  but  not  less  essential  or  valuable 
character?  While  we  are  thus  benefitting  the 
state,  by  the  facilities  we  afford  to  one  class  of 
our  citizens,  is  it  judicious,  is  it  republican,  to 
withhold  the  aid  it  is  in  our  power  to  afford  to 
those  who  need  it  most,  the  great  mass  of  the 
community?  While  other  states  are  wisely 
laboring  to  improve  the  system,  and  extend 


cal,  and  intellectual  faculties  of  all  the  people  the  advantages  of  common  schools,  shall  Ken- 
of  both  sexes,  will  make  our  institutions  more|tucky  be  careless  or  indifferent  on  the  sub- 
stable  and  our  laws  more  efficacious — will  ject?  Shall  she  not  be  anxious  to  maintain 


elevate  the  character  of  our  State,  and  promote 
"both  personal  and  social  peace  and  happiness, 


her  rank,  in  this  important  particular,  as  she 
has   hitherto  done  in  other  respects,   among 


and  will  afford  the  best  of  all  safeguards  of  I  her  sisters  of  the  federal  family?  Kentucky 
public  order  and  individual  security.  The  |  abounds  in  resources,  natural,  moral,  and  iii- 
only  truly  effectual  law  is  that  inscribed  on  tellectual.  Let  it  then  be  our  effort  to  call 
the  Heart;  and  by  enlightening  the  popular  them  forth,  and  render  them  useful.  Let  us 
Head,  and  rectifying  the  popular  Heart,  pub-  be  careful  to  husband  them  well,  and  rouse 
lie  peace  and  private  right  will  be  made  more 


than  they  could  possibly  be  made  by 
the  wisest  code  of  human  laws,  backed  bv  the 


into  action  all  the  dormant  energies  of  our 
citizens.  This  course,  in  the  opinion  of  the 
committee,  is  due,  not  only  to  our  own  inter- 


best  of  human  sanctions;   and  consequently  ests  as  a  state,  but  to  the  great  cause  of  free- 
much  more  will  be  saved  to  the  public  and  to  dom    and  humanity.     The  American  States 


ividuals,  by  popular  e 
;,  than  will  be  expem 


education,  of  the  right- 


expended  in  the  universal 


indivi 
sort 

diffusion  of  it,  even  at  the  cost  of  the  common 
wealth.  It  is,  therefore,  at  once  the  interest 
and  duty  of  government  to  afford  facilities 
for  education;  so  that,  as  far  as  possible,  every 


are  the  depositories  of  the  liberties 
kind.     They 


of  man- 
bv  their   political  experi 


ment,  fighting  the  great  moral  battle  of  suc 
ceeding  generations.  By  the  diffusion  of 
knowledge,  and  the  promotion  of  virtue,  our 
free  institutions  may  be  rendered  indestructi- 

intellectual  seed  may  be  made'to  expand  and  jblc,  and  the  blessings  of  self-government  ex- 
fructify.     The   general  diffusion  of  scholastic  |  tended  and  perpetuated, 
instruction  cannot  be  expected  from  the  spoil- ' 


taneous  and  unassisted  efforts  of  the  people. 
The  rich,  it  is  true,  can  educate  themselves; 
but  the  poor,  and  those  in  moderate  circum 
stances,  must  depend,  in  a  great  measure,  for 
the  means  of  information,  upon  the  care  and 
assistance  of  a  parental  government.  Hence, 
the  propriety  of  legislative  interposition  and 
patronage.  By  the  tutelar  assistance  of  the 
state,  many  a  brilliant  mind,  otherwise  des 
tined  to  languish  in  obscurity,  may  be  brought 
forth  and  expanded;  many  an  humble  indi 
vidual,  otherwise  without  the  means  of  culti 
vation  and  improvement,  may  be  rendered  an 
ornament  and  benefactor  of  mankind,  and 
enabled  to  "pluck  from  the  lofty  cliff  its  death 
less  laurel." 

Wherever  common  schools  have  been  tried, 
their  results  have  been  eminently  beneficial. 
In  Kentucky,  the  experiment  has  never  vet 


Common  schools  have  ever  been  considered 
the  best  agents  for  circulating  the  rudiments 
of  knowledge.  In  most  of  the  old  states,  they 
are,  and  long  have  been,  in  successful  opera 
tion.  Kentucky,  being  the  first  offspring  of 
the  "original  thirteen/''  and  being  the  nucleus 
of  all  the  young  states  in  the  great  valley  of 
the  Mississippi,  owesit  to  herself  and  to  them, 
to  set  a  good  example,  by  instituting,  as  early 
as  possible,  a  system  of  education,  that  prom 
ises  to  be  the  source  of  such  extensive  and 
durable  usefulness. 

The  only  doubt  with  the  committee,  is  as  to 
the  practicability  of  maturing  and  adopting 
an  appropriate  system  at  the  present  time. 

They  are  inclined  to  believe,  that  an  attempt 
to  put  any  plan  into  immediate  operation, 
might,  for  the  want  of  maturity  and  sy sternal, 
ic  arranement,  be  unsuccessful  and  inauspi 


been  made,  only  because  the  population  h 
not  heretofore  been  deemed  sufficiently  dense 
and  homogeneous,  nor  the  condition  of  the 
people  so  much  diversified  by  the  inequalities 
of  fortune,  as  to  render  its  adoption  expedient 
or  necessary.  Literary  institutions  for  the  at 
tainment  of  the  higher  branches  of  knowledge, 
and  for  the  education  of  those  whose  funds  are 
sufficient  to  pay  for  their  own  tuition,  have, 


we  are  proud  and 
cicctly  multiplied  and  li 


to  say,  been  suffi- 
•rally  patronized  in 


cious.  The  Literary  Fund,  they  fear,  is  at 
present  insufficient  to  accomplish  the  object. 
It  should,  in  the  opinion  of  the  committee,  be 


so  far  enlarged,  a 
the  whole  system. 


by  its  interest,  to  support 
How  and  when  this  ca:; 


be  effected,  they  think  should  be  left  to  the 
decision  of  succeeding  legislatures.  That  it 
may  bo  effected,  and  that' speedily,  they  are 
well  convinced;  and  although  the.  time  does 
not  appear  to  have  arrived,  when  it  would  be 
prudent  or  practicable  to  commence  the  actu 
al  operations  of  the  system,  the  committee  are 


REPORT  OF  THE  SELECT  COMMITTEE.  47 


extremely  anxious  that  the  legislature  should  'object,  and  will  unite  in  any  judicious  and  ap- 
begin,  even  now,  by  its  preparatory  meas-  propriate  plan  for  attaining  it,  there  can  be 
xires,  to  give  an  impulse  to  public  opinion,  j  no  doubt.  The  committee,  therefore,  deem  it 
and  to  lay  the  foundation  of  the  ultimate  edi-  expedient  to  diffuse  information  on  the  sub- 
fice.  ject,  and  call  public  attention  to  its  considera- 

The  committee  are  neither  prepared  nor  in-  j  tion,  which  can  be  done,  perhaps,  in  no  other 
dined  to  submit  any  plan  for  adoption,  at  this  I  way  more  effectually,  than  by  the  publication 
late  period  of  the  session.  None  has  occurred  !  and  distribution  of  the  report  of  the  commis- 
to  them  more  eligible  than  that  suggested  by  !  sioners.  Time  enough  will  be  afforded,  be- 
the  commissioners.  Its  general  principles,  <tween  this  and  the  next  session  of  the  legisla- 
your  committee  most  sincerely  and  confident-  ture,  for  examination  and  deliberation;  and 
ly  recommend.  By  uniting  voluntary  iudi-jthen,  it  may  be  hoped,  the  representatives  of 
vidual  contributions  with  the  public  appro-  j  the  people  will  come  together  prepared  to  act 
priations,  the  rich  will  certainly  educate  their  j  on  this  interesting  subject,  safely  and  deci- 
children,  because  they  have  paid  for  their  ed- !  sively.  The  committee,  therefore,  respectful- 
ucation,  and  can  procure  it  at  a  moderate  ex-  i  ly  recommend  the  adoption  of  the  following 
pense;  and  the  poor  will  avail  themselves  of  j  resolution: 

the  opportunity,  because  it  will  cost  them  |  Resolved  ly  the  General  Assembly  of  the  Corn- 
nothing.  In  this  way,  all  classes  of  society  ;  monwealth  of  Kentucky,  That  five  thousand 
maybe  sufficiently  informed,  with  an  expen-  copies  of  the  report  of  the  commissioners  on 
diture  of  money  comparatively  inconsiderable . !  Common  Schools,  and  of  the  report  of  the  house 

It  is  all-important,  that  the  experiment  of  of  representatives  on  Education,  be  printed  in 
common  schools,  whenever  made,  should  be  a  pamphlet,  for  the  use  of  the  people  of  Ken- 
successful.  A  failure,  in  the  first  instance,  tucky;  and  that  it  be  the  duty  of  the  secretary 
might  discourage  future  attempts,  and  be  fatal  of  state  to  transmit  to  the  clerk's  office  of  each 
to  the  ultimate  result.  The  system  should  be  county  court  in  the  state,  for  distribution,  as 
well  matured,  and  adapted  to  the  peculiar  many  of  said  pamphlets  as  each  county  shall 
condition  and  genius  of  our  population;  and  be  entitled  to,  at  the  rate  of  fifty  for  each  repre- 
the  people  must  approve  it,  or  it  will  inevita- ;  sentative. 
bly  fail.  That  the  people  are  favorable  to  the  G.  ROBERTSON",  Chairman, 


PRELECTION. 


Shortly  after  the  close  of  the  last  war   with  England,  the  Legislature 
of  Kentucky  initiated,  what  has  since  been  called,  "  the  relief  system," 
by  extending  the  right  to  replevy  judgments  from  three  to  twelve  months. 
To  minister  still  more  relief  to  debtors  "  The  Bank  of  the  Commonwealth  " 
was  chartered  by  a  statute  passed  on  the  29th  of  November,  1820,  and 
without  any  other  capital  than  the  net  proceeds  of  the  sales,  as  they 
might  accrue,  of  some  vacant  lq,nds, — and  for  the  debts  or  notes  of  which 
Bank  the  State  was  not  to  be  responsible  beyond  the  said  capital,  which 
was  scarcely  more  than  nominal.     It  was  foreseen   and,  by  the  debtor 
class  desired  that  the  notes  issued  by  that  Bank  would  soon  become  de 
preciated;  and  in  a  short  time,  the  depreciation  fell  to  two  dollars  in  pa 
per  of  said  Bank  for  one  dollar  in  gold  or  silver.     To  effectuate  the  re 
lief  intended  by  the  charter,  the   Legislature,  on  the  25th  of  December, 
passed  an  act  providing  that,  if  a  judgment  creditor  would  endorse  on 
his  execution  that  he  would  take  the  paper  of  said  Bank  at  par  in  satis 
faction  of  his  judgment,  the  debtor  should   be   entitled  to  a  replevin  of 
only  three  months;  but  that,   if  such  endorsement  should  not  be  made, 
the  debtor   might  replevy  for  two  years',  and,  by  an   act   of  1821,  the 
ca-sa  for  debt  was  abolished,  and  the  right  to  subject  choses  in  action 
and  equities  to  the  satisfaction  of  judgments  was  substituted.     These 
extensions  of  replevin  and  this  abrogation  of  the  ca-sa  were,  in  terms, 
made  applicable  to  all  debts  whenever  or  wherever  contracted — and  were, 
consequently,  expressly  retroactive  in  their  operation — embracing  con 
tracts  made  in  Kentucky  before  the  date   of  the  enactment  as  well  as 
such  as  should  be  made  afterwards.     To  the  retrospective  aspect  many 
conservative  men  objected  as  inconsistent  with  that  provision  in  the  na 
tional  constitution  which  prohibits  any  State  enactment  "impairing  the  obli 
gation  of  contracts"   and  also  with  that  of  the  constitution  of  Kentucky 
which  forbids  any  legislative  act  "impairing  contracts"      A   majority  of 
the  people  of  Kentucky,  desiring  legislative  relief,  either  because  they 
were  in   debt  or  sympathized  with  those  who  were,  endeavored  to  up 
hold  the  whole  relief  system,  while  a  firm  and  scrupulous  minority  de 
nounced  it  as  unconstitutional  and  void.     That  collision  produced  uni 
versal  excitement,   which  controlled  the  local  elections.     The  question 
was  brought  before  the  Court  of  Appeals  of  Kentucky,  and  at  its  Fall 
term,  in  1823,  that  tribunal  unanimously  decided,  in  an  opinion  deliv 
ered  on  the  8th  of  October,  1823,  by  Ch.  Jus.  Boyle,  in  the  case  of  Blair 
vs.  Williams,  and  in  opinions  seriatim  by  the  whole  court  on  the  llth  of 
the  same  month,  in   the  case  of  Lapsley  vs.  Brashcar,  &c.,  that,  so  far 
as  the  Legislature  had  attempted  to  make  the  extension  of  replevin  retro 
active,  its  acts  were  interdicted  by  both  the  constitution  of  the  State  and 
of  the  Union.     As    was  foreseen,  those   decisions  produced  very  great 
exasperation  and   consequent  denunciation  of  the  court.     The  Judges 
were  charged   with  arrogating   supremacy  over  the  popular  will — their 
authority   to   declare  void  any  act   of  the  Legislature  was  denied,   and 
7 


SO  PRELECTION. 

they  were  denounced  by  the  organs  and  stump  orators  of  tho  dominant 
relief  party  as  usurpers  and  self-made  kings.  No  popular  controversy, 
waged  without  bloodshed,  was  ever  more  absorbing  or  acrimonious  than 
that  which  ra^ed,  like  a  hurricane,  over  Kentucky  for  about  three  years 
succeeding  the  promulgation  of  those  judicial  decisions. 

On  the  10th  day  of  December,  1823,  the  following  resolutions,  pre 
faced  by  a  long,  bombastic,  denunciatory,  and  ad  captandum  preamble, 
were  adopted  by  the  following  vote  in  the  House  of  Representatives — 

Yeas—Messrs.  Abel,  Ashby,  Breckinridge,  Brown,  Chenowith,  Churchill, 
Cockerill,  Daveiss,  Dejarnett,  Desha,  H.  S.  Emerson,  J.  Emerson,  Eward, 
Farrow,  Fletcher,  French,  Galloway,  Green,  S.  Griffith,  Hall,  Harald, 
Hay  den,  Holt,  Joyes,Lecompte,  Lee,  Lynch,  Macy,  May,  Mitchell,  Mos- 
ley,  Mullens,  Munford,  J.  M'Connell,  M'Dowell,  M'Elroy,  Napier,  Nut- 
tall,  Oldham,  O'Bannon,  Porter,  Prince,  Railey,  Riddle,  Rodes,  Rowan, 
Secrest,  Selby,  Stapp,  Stephens,  Stith,  Thomas,  Ward,  Webber,  Wool- 
ford  and  Younger — 56. 

Nays — Mr.  Speaker,  Messrs.  Alexander,  Berry,  Caldwell,  Cox,  Cun 
ningham,  Duncan,  Farmer,  D.  Garrard,  Gist,  W.  R.  Griffith,  Hawes, 
Lander,  Laughlin,  Logan,  Lyne,  Marshall,  Montgomery,  Morgan,  J.  M. 
M'Connell,  M'Millan,  New,  Oglesby,  Pope,  Rapier,  Rumsey,  Russell, 
G.  Slaughter,  P.  C.  Slaughter,  Thomson,  Tilford,  Todd,  True,  Turner, 
WicklifFe,  Wood,  Woodson  and  Woodward— 40. 

Mr.  Robertson,  then  Speaker  of  the  House,  made  the  following  speech 
on  that  occasion)  in  opposition  to  that  preamble  and  those  resolutions 


SPEECH  OF  MB.  ROBERTSON, 

Delivered  in  Committee  of  ike  Whole  in  the  Legislature  of  Kcnlucky*  on  tha  4M 
day  of  December,  1823,  on  a  long  preamble,  concluding  with  the  following  reso~ 
tions  in  relation  to  the  Court  of  Appeals,  for  their  late  decision  against  the-  two 
years  replevin  and  endorsrment  acts  of  this  Slate. 


Resolved  by  the  General  Assembly  of  the  Com-  j  frention  of  the  raembeis,  that  ho  should  be  ably 
tnonwealth  of  Kentucky-,   That  they   do   most  j  to  suggest  some  reasons,  which,  if  they  could 
solemnly  protest   against   the   doctrines  pro-  i  not  convince,  would  at  least  bring  those  who 
mulgatedin  that  decision,  as  ruinous  in  their   advocated  the  resolution  to  pause  and  reflect 
__j  ------  L.  .^i.:,,^  ..      '  seriously  before  they  should  give  a  final   de 

cision.  And  he  hoped  that  if  this  argument 
should  be  protracted  to  a  length  which  might 
be  inconvenient  to  some  gentlemen,  the  ac 
knowledged  importance  of  the  subject  would 
be  a  sufficient  apology  for  the  time  which 


practical  effects  to  the  good  people  of  this  Com 
mon  wealth,  and  subversive  of  their  dearest  and 


most  invaluable  political  rights. 

And  it  is  hereby  further  resolved  by  the  au 
thority  aforesaid,  That  if  the  decision  should 
not,  by  the  court,  be  reviewed,  or  reversed, 
but  should  be  attempted  to  be  enforced  upon 


should  be  consumed  in  discussing  it.     It 


the  good  people  of  this  commonwealth,  the  a  momentous  subject.  It  was,  in  its  practical 
legislature  cannot,  ought  not,  and  will  not  j  results,  no  other  than  whether  the  Judiciary 
furnish  any  facilities  for  its  enforcement;  on  j  should  be,  as  it  was  intended  by  the  constitu- 
the  contrary,  that  it  is  the  boundeii  duty  of  j  tion,  a  check  on  the  other  departments,  or 
the  legislature,  in  vindication  of  the.  rights  of  j  whether  the  legislature  should  be  uncon- 
the  people,  and  the  great  principles  upon  |  trolled,  and  uncontrollable  by  anything  but 
which  those  rights  depend,  to  withhold  the  |  its  own  sense  of  propriety. 


agency  of  the  ministerial  officers  of  the  govern  - 
-ment  from  assisting  in  the  practical  propaga- 


That  time  could  not  be  said  to  be  wasted  or 
employed  improperly,  which  might  be  neces 
sary  for  a  full  development,  to  the  people,  of 


tion  of  the  erroneous  doctrine  of  that  decision, 

at  least  until  an  opportunity  be  afforded  to  the  j  the  character  and  tendency  of  such  a  measure, 
people  of  exploring  the-iiew  theory  of  obliga-  ajid  for  an  impartial  examination  and  refuta 
tion,  which  it  attempts  to  establish.  |  tion  of  the  arguments  which  had  been  pub- 
Resolved  further,  by  the  authority  aforesaid,  lished  in  support  of  it.  Those  arguments 
That  any  effort  which  the  legislature  may  feel  had  been  elaborated  from  a  subtle  mind,  and 
it  a  duty  to  make  for  the  contravention  of  the  j  Were  intended  for  general  diffusion  among  the 
erroneous  doctiiue  of  that  decision,  ought  not  j  people.  He  considered  them  as  a  tissue  of 
to  interfere  with,  or  obstruct  the  administra-  |  sophisms,  and  intended  to  examine  them  with 
tion  of  justice  according  to  the  existing  laws  j  that  freedom  which  he  had  a  right  to  use,  to 
which,  whether  they  were  or  were  not  expedi-  j  show  their  fallacy.  He  considered  them  as 
ent,  are  believed  to  be  constitutional  and  valid; ;  poisonous,  and  was  determined  to  distribute 
and  which  should,  when  it  shall  be  thought !  their  antidote,  as  far  as  he  could,  by  the  hum- 

'blc 


expedient  to  do  so,  be  repealed  by  the  Legisla 
ture,  and  not  by  the  Appellate  Court. 

Mr.  ROBERTSON  (Speaker)  arose  and  said  he 
•had  not  expected  that  the  friends  of  the  reso 
lution  would  have  precipitated  their  opponents 
into  a  discussion  of  them  before  time  had 
been  given  to  examine  carefully,  and  endeav 


contributions  of  his  mind.  He  had  hoped 
that  this  subject  would  not  be  brought  before 
the  legislature  during  this  session;  it  could  do 
no  good;  the  community  had  been  long  enough 
agitated;  the  public  mind  had  been  long 
enough  and  highly  enough  inflamed.  He  had 
come  here  for  the  purpose  of  endeavoring  to  re 


or  to  comprehend  the  elaborate  printed  speech  |  store  the  people  to  peace,  to  confidence,  to  re- 
which   proceeded  them  as  a  preamble,    and  !  pose  and  to  concord-     This  proposition   will 

Hot  tend  to  any  of  these  desirable  ends; 


which  had  been  laid  on  the  tables  of  members 
'Only  one  day  before. 

He  had  supposed  the  only  object  of  printin 


it  is 

not  intended  for  conciliation,  or  the  people's 
good.     As  the  gentleman  from  Jefferson  (Mr. 

500  copies  of  that  argument,  was  to  enable  the  :  Rowan)  has  forced  the  subject  on  the  consid- 
members  to  examine  it  deliberately  and  faith-    eration  of  the  legislature  and  of  the  people,  and 
fully.     This  he  had  not  had  sufficient  time  to    Las  thought  proper  to  urge  it  with  all  the  pow- 
«lo,  although  he  believed  he  had  rend  it  twice 
during  that  morning  and  the  preceding  night. 
He  confessed  that  there  were  some  sentences    rmrtant   that  the  public  mil 


has  thought  proper 

er.n  of  his  intellect,  in  a  lon 


pow 
"ad  cupfandum" 


manifesto,  which  has  been  published,  it  is  im- 
thi1  public  mind  should  be  en- 
in  it  which  he  feared  no  member  of  the  com-  lightened  by  a  full  and  free  discussion.  The 
mittec  could  clearly  and  satisfactorily  ex-  people  must  now  understand  and  decide  for 
plain.  However,  he  hoped,  unprepared  aa  lie  themselves  the  great  and  fundamental  princi- 
WJIP,  ifhe*couid  have  thy  patient  and  close  at.-  pV-s  involved  in  thosp  resolution*.  Whenever 


SPEECH  OF  MR.  ROBERTfoON, 


tliej  shall  be  permitted  to  investigate  them 
dispassionately  and  impartially,  they  will  de 
cide  them  correctly,  and  it  is  hoped,  irrevoca 
bly.  This  is  an  eventful  crisis  in  the  affairs 
of  Kentucky — a  great  era  in  her  history  and 
the  development  of  her  constitution.  Let  the 
people  be  informed  of  the  truth — let  them  have 
light,  and  all  will  be  right.  Many  of  them 
have  been  deceived.  These  resolutions  are 
designed  to  deceive  and  amuse  them  still  long 
er.  'They  are  illusory:  they  speak  one  thing 
and  mean  another.  The  people  should  know 
it.  Let  the  discussion  therefore  be  ample  and 


free,  and  if  it  should  result  in  the  inculcation 


islature  may  felicitate  itself  for  having  done 
more  good  and  prevented  more  mischief  than  it 
it  could  have  done  by  any  legislation. 

Whatever  shall  be  thought  of  these  resolu 
tions  here  or  elsewhere — whatever  feelings 
they  may  generate,  he  hoped,  (he  said)  that 
the  discussion  would  be  grave  and  decorous, 
and  the  decision  dispassionate  and  impartial. 
He  would  most  respectfully  and  earnestly  en 
treat  the  members  of  the  committee  to  en 
deavor  to  feel  a  just  ^ense  of  their  responsibili 
ty,  and  their  public  duty — to  stifle  all  passion, 
and  to  look  only  to  the  public  good.  Thus 
prepared,  he  would  hope  for  a  good  result,  for 
a  vote  which  would  be  the  decision  of  sober 
and  enlightened  reason,  not  of  passion;  for 
such  a  vote  as  men  must  give  who  submit  to 
the  control  of  their  judgments  alone,  and  who 
look  only  to  the  glory,  prosperity,  arid  happi 
ness  of  their  country. 

The  subject  of  debate  naturally  divides  it 
self,  said  Mr.  Robertson,  into  two  primary  po 
sitions.  1st.  Is  the  decision  of  the  Court  of 
Appeals  correct?  2nd.  Even  if  it  should  be 
believed  to  be  wrong,  are  the  resolutions  prop 
er  and  in  consonance  with  the  theory  and  fun 
damental  principles  of  the  government? 

He  would  invert  the  natural  order  and  con 
sider  the  last  proposition  first;  ami  after  hav 
ing  endeavored  to  show  that,  even  if  the  court 
had  erred,  there  were  still  insurmountable  ob 
jections  to  the  resolutions,  he  should  try  to 
prove  that  the  decision  was  sustainable  on  the 
plainest  principles  of  reason,  and  of  justice, 
and  by  the  obvious  and  undeniable  import  of 
the  federal  and  state  constitutions;  and  strange 
as  it  might  appear,  he  expected  to  derive  no  in- 
considerable  support  to  his  argument  from  the 
pn-amble  itself,  and  hoped  to  be  able  before  he 
could  resume  his  seat,  to  exhibit  su<ch  palpable 
fallacies  and  incongruities  in.  that  recondite 
document,  as  to  induce  even  its  zealous  au 
thor  to  doubt  the  legitimacy  of  his  conclusion. 
Having  on  a  former  occasion  given  his  opin 
ion  on  so  much  of  this  subject  as  relates  to  the 
decision  of  the  supreme  court  on  the  occupant 
laws  of  this  state,  on  which  he  had  suggested 
what  he  considered  the  most  elligible  course 
for  ill"  1  <•;_•:!  si  ;t.nnv  to  purs;;-',  ho  would  forbeai 
any  ;:  r,  ;5  id  | 

should  onlv  norice  the  two  firsi        •         ...     . 


relation  to  the  Court  of  Appeals,  as  what  fol 
lowed  was  only  a  consequence  from  them. 

Among  many  strong  and  striking  objections 
to  those  resolutions,  he  would  only  mention  a 
few.  First,  when  taken  in  connection  with  the 
preamble  which  assigns  the  reasons  for  adopt- 
'ng  them,  they  import  what  is  not  true — that 
s,  that  the  court  has  been  guilty  of  usurpation. 
Secondly,  they  practically  deny  that  the  court 
has  a  right  to  decide  on  the  constitutionality 
of  the  acts  of  the  legislature.  Thirdly,  they 
strike  at  the  constitutional  power  and  inde 
pendence  of  the  judiciary,  effect  no  good  or 
practicable  end,  are  derogatory  to  the  char 
acter  of  the  state,  and  contain  assertions  which 
are  not  just  or -true. 

And  1st,  is  it  true,   said  he,  that  the  court 
have  been  guilty  of  usurpation?    If  they  have, 
what  apology  has  the  gentleman,  who  intro 
duced  these  resolutions,  for  not  moving  to  re 
move  the   judges  from  office?     Why  content 
himself  with  decrying  them?     He  knows,  and 
this  committee  knows,  that  there  has  been  no 
usurpation.     Usurpation  is  the  assumption  of 
power  not  delegated.     Have  the  court  arroga 
ted  to  themselves  any   power  that  does   not 
constitutionally  belong  to  their  station?     It  is 
not  to  be  believed  that  any  member  will  be 
"blunt  and   bold"   enough  to  utter   such    an 
opinion,  except  the  mover  of  the  resolutions; 
and  it  would   be  due  to  him,  to   suppose  in 
charity,  that  the  utterance  of  such  a  monstrous 
entiment,  in  the  last  paragraph  of  his  prcam- 
Dle,  was  an  inadvertence;  for  that  gentleman, 
or  reasons  which  shall  be  hereafter  disclosed, 
should  be  the  last   member  of  the  committee 
ivho  would  make  so  unauthorized  a  charge. — 
^Yhat  have  the  court  done?     They  have  deci- 
:led,  on  their  oath  of  office,  that  the  Constitu- 
;ion  of  the  United  States  is  paramount  to  an  act 
if  the   Kentucky  Legislature.     In   doing  this 
what  unusual  or  dangerous  power  have  they 
exerted?     In  pronouncing  an  act  of  assembly 
to  be  unconstitutional,  they  have  done  only 
hat  every  court  in  the  United  States  has  often 
and  properly  done;  and  what  it  is  frequently 
their  duty  to  do.     If  this  makes  them  usurpers 
they  have  been  guilty  of  usurpation  ever  since 
they  were  elevated  to  the  bench,  and  the  mem 
ber  who  has  exhibited  the  charge  has  partici 
pated    in   that  usurpation   more    than    once, 
whilst  he  was  associated  with  a  majority   of 
them. 

No  proposition,  (said  he,)  is  more  universal 
ly  conceded  by  the  enlightened,  or  is  more 
firmly  established  by  authority  or  reason, 
than  the  j 
too,  to  dec 


power  of  the  jud 
:larc  an  act  of  1 


iciary,  and  their  duty, 
legislation  void  for  re 
pugnance  to  the  constitution;  a  power  and  a 
duty  which  result  from  the  nature  of  the  ju 
dicial  functions,  the  objects  of  the  judicial 
trust,  and  constitute  a  palladium  of  security 
for  the  dearest  individual  rights.  The  consti 
tution  is  the  paramount  law;  the  Judges,  Leg 
islature,  and  every  citizen,  are  bound  by  it. — 
The  powers  of  legislation  are  limited  by  it;  the 
:  of  the  citizen  are  guaranteed  and  pro- 

]  '1  l'-y  their 
:,...,..  .  cenjiin  great 


ON  THE  COURT  OF  APPEALS. 


fundamental  principles  which  are  held  sacred, 
•and  lays  down  landmarks  which  the  legisla 
ture  cannot  transcend;  which  even  the  people 
•themselves  are  not  allowed  to  overleap.  It  is  to 
the  legislature  the  charter  of  their  privileges 
and  duties.  It  is  not  a  chart  blanche;  it  is  well 
filled  up.  It  distributes  the  powers.of  govern 
ment  among  three  bodies  of  magistracy; 
makes  each  the  depository  of  a  distinct  por 
tion,  and  to  a  certain  extent,  independent  of 


might  be,  still  it  was  necessary  that  they  should 
be  governed,  and  that  majorities  might  be 
wrong,  it  was  thought  necessary,  in  order  to 
secure  inviolate  the  great  principles  of  civil 
and  religious  liberty,  that  there  should  be  es 
tablished  certain  great  boundaries  of  power, 
which,  until  changed  in  the  mode  prescribed, 
the  people  themselves  could  not  prostrate. 
Hence,  to  secure  the  ends  of  association,  it  was 
deemed  right  that  the  legislature  should  not  be 
permitted  to  enforce  any  law  which  they  were 


the  others.     The  whole  people  being  too  mul-  .  x  „  J    

titudinous  to  perform  the  functions  of  govern-  |  not  permitted  to  enact  by  their  letter  of  attor- 

•ment,  without  the  intermediation  of  agents  or  ™     **"**  *•—  -1 '-1   ~~* --»".-«—•-   - 

trustees,  have,  by  the  constitution,  confided  to 


laws  for 


the  legislature  the   power  to  make 

them;  to  the  judiciary  the  power  to  expound 

laws./or  them;  and  to  the  executive  the  power 


ney — that  they  should  not  adjudicate  on,  or 
execute  their  own  laws.  Montesquieu,  Jef 
ferson,  and  all  modern  writers  on  political 
law  agree,  that  that  government  is  a  despot* 
ism,  whatever  may  be  its  name  or  its  form,  in 

to  execute  laws  for  them.  When  the  legisla-  I  which  legislative  and  judicial  powers  are  con- 
ture  enact  laws,  they  do  it  in  the  name  and  with  |  solidated.  The  great  improvement  in  the  sys- 
the  sovereign  power  of  the  people;  when  the  I  terns  of  modern  republics,  and  that  which  dis- 
courts  expound  the  laws  and  decide  private  tinguishes  them  most  above  those  of  antiquity, 
controversies,  they  also  do  it  in  the  name  and  renders  them  most  stable,  and  endears  them 
•with  the  sovereign  pewer  of  the  people.  If  the  most  to  our  affections,  is  the  interposition  of 


legislature  are  the  people,  because  they  repre 
sent  them  in  one  attribute  of  their  power,  the 
judges  are  as  much  the  people,  when  they  repre 
sent  them  in  another  attribute  of  sovereignty? 
Hence,  there  is  nothing  unreasonable  in  "three 
men  as  judges  controlling  one  hundred  and 
thirty-eight  men  as  legislators" — it  is  the  peo 
ple  who  control  the  one  hundred  and  thirty- 
eight,  through  their  agents;  the  judges,  whom 
they  have  created  for  that  purpose.  Each  de 
partment  of  agency  is  responsible  to  the  peo 
ple  for  delinquency,  but  only  in  the  modes  pre 
scribed  in  the  constitution;  that  is  the  power  of 
attorney  from  the  people  to  each  of  the  depart 
ments,  and  must  be  enforced  until  revoked; 
neither  has  a  right  to  transcend  the  authority 
delegated  in  this  power  of  attorney.  It  de 
clares  that  the  legislature  shall  not  pass  cer 
tain  laws— their  not  having  the  right  to  pass 
such  is  the  political  liberty  of  the  citizen. 
But  this  boasted  liberty  would  be  only  nominal;  the  varying  and  uncertain  opinions  of  a  domi- 


checks  and  ballances.  There  can  be  no  politi 
cal  security  in  any  government  in  which  all 
power  is  consolidated  in  one  department,  even 
if  that  should  be  the  legislature. 

"An  elective  despotism/' says  Mr.  Jefferson, 
111  his  notes  on  Virginia,  "is  not  the  govern 
ment  which  we  fought  for."  The  American 
constitutions  are  all  modelled  conformably  to 
this  principle.  In  all  we  find  three  separate 
departments,  with  powers  mutually  to  check 
each  other.  The  constitution  of  Kentucky  is 
replete  with  this  pervading  principle. 

The  House  of  Representatives  cannot  pass  a 
law  without  the  concurrence  of  the  Senate,  nor 


can  both  concurring,  unless  there  be 


a  majori 


ty  of  all  elected,  make  a  valid  enaction  with 
out  the  sanction  of  the  governor,  however  much 
their  constituents  may  desire  or  need  it;  and 
so  of  many  other  provisions  of  the  constitution. 
Those  Who  made  it3  were  unwilling  to  trust 


it  would  be  only  a  mockery,  unless  the  indi 
vidual  whose  rights  would  be  assailed  by  un 
constitutional  acts  could  appeal  to  some  inde 
pendent  judicial  tribunal  for  redress. 

A  constitution  is  a  compact  with  all  society 
and  each  individual  composing  it,  which  is  in 
tended  tfor  the  protection  of  each,  however 
humble 'or  weak,  from  the  oppression  of  the 


The  will  of  the  majority  should  con- 


whole. 

trol  when  it  is  expressed  in  accordance  with 
this  fundamental  compact.  But  a  majority, 
however  large  or  powerful,  or  virtuous,  have  no 
right  to  coerce  a  minority,  however  small  or  ob 
noxious,  contrary  to  the  fundamental  princi 
ples  thus  adopted  by  all  for  the  security  of 
each;  for  if  a  majority  can  have  the  political 
power  to  act  in  contravention  of  the  guarantees 
of  the  constitution,  there  is  no  necessity  for  a 
constitution:  the  will  of  the  majority  will  then 
be  that  constitution,  or  must  supercede  it.  But 
as  it  was  known  that  man  was  fallible  and  un 
der  the  dominion  of  pn/^iort,  interest,  and 
eve:  i  1  '  > ,  ; 

the  co 
however  v:  . 


nant  majority.  They  thought  that  public  rec 
titude  of  motive  was  not  a  sufficient  security  for 
the  rights  of  individuals.  If  it  would  be, 
there  Would  be  no  necessity  for  a  constitution — 
and  government  itself,  in  its  mildest  form, 
would  be  tyranny.  The  only  object  of  a  limit 
ed  constitution,  is  to  secure  the  few  against  the 
encroachments  of  the  manv.  How  can  this 
great  purpose  be  effected  unless  there  is  some 
constitutional  check  on  the  legislature?  What 
should  be  that  check?  Those  who  made  the 
constitution  thought  that  the  best  whicli  could 
be  devised  would  be  an  enlightcd  Judiciary; 
they  thought  wisely — a  better  could  not  havo 
been  imagined.  Judges  arc  selected  for  their  su 
perior  knowledge  of  the  laws  and  constitution, 
and  for  their  probity;  they  have  no  motive  to 
decide  wrong;  they  have  no  power  except  that 
of  the  preventive  character — they  hold  neither 
the  purse  nor  the  sword.  Their  only  ambition 
is  to  adorn  the  bench  by  their  wisdom  and  pu 
rl' v — they  do  not  mingle  in  party  or  election- 
.  was  known  1/;:it;  cori- 

he  com- 

.    V    ii>   iO    till!    COlliftJ  -      u'J 


SPEECH  OF  Mil.  ROBERTSON, 


to  which  all  the  members  have  become  parties,  j  liberty  of  the  minority,  who  is  to  decide  bo- 
and  as  there  would  be  great  danger  and  palpa-  \  tween  them?  If  the  legislature  destroy  thw 
ble  incongruity  in  permitting  either  party  inter-  j  liberty  of  speech  or  of  conscience,  who  shall 
ested  to  decide  irrevocably  against  the  other,  decide  between  them  and  the  disfranchised 

individuals?     An   impartial  and  enlightened 
court,  sworn  to  support  the  constitution. 

If  the  court  had  the  power,  said  he,  they  cer 
tainly  were  not  usurpers  for  having  done  their 


it  was  agreed  that  some  umpire  should  be  se 
lected,  to  whom  the  people  should  confide  the 


power  of  deliberating  and  deciding*  between 
them.  An  infallible  tribunal  could  not  be  cre 
ated  out  of  fallible  materials — but  there  must 
be  some  arbiter,  and  none  less  liabl 


duty.     Being   compelled  judicially  to  decide 
or  dis-   the  case  presented  to  them,  they  had  the  right 
posed  to  err  could  have  been  selected,  than  an  to  render  judgment  for  that  party  on  whose  side 
independent  judiciary.     But  the  primary  end  j  they  believed  the  constitution  to  incline.     If 
of  their  creation  will  be  defeated  if  they  be  not  this  was  usurpation,  why  was  the  ( 


they 

allowed  to  declare  an  act  which  shall  be  incon 
sistent  with  the  constitution,  void.     If  they   the  legislature,  it  was  not  a  judicial  question, 


have  not  this  power,  then  there  is  no  constitu 
tion  except  the  arbitrary  will  of  a  majority  of 
the  legislature.  The  limitations  in  the  consti 


tution  would  be  nugatory, 
cst 


Therefore,  an  hon- 


tjudiciary  is  the  anchor  of  the  republic. 
Our  constitution  has  a  conservative  princi 


ple;  that  principle  is  that  the  legislature 


why  was  the  case  forced 
upon  them?    For  if  it  were  settled  already  by 


there  being  nothing  more  to  decide.   The  court 
manifested  as  much  reluctance  to  give  the  de 
cision  as  was  compatible  with  their  duty;  the 
desired  to  avoid  giving   any   opinion  "Vine 


would  invalidate. the  replevin  act;  but  when 
they  could  not  with  propriety  longer  avoid  a 
direct  decision  on  it,  what  did  they  do?  Why 

prohibited  to  pass  certain  laws,  and  if  they  j  they — decided  it!  And  for  this  they  are  de- 
should  disregard  the  prohibition,  their  act  shall  :  nounccd,  by  at  least  one  gentleman,  as  "usurp- 
be  a  nullity.  When  a  court  declares  an  act  of  ers."  Monstrous  and  perilous  denunciation!! 
assembly  void,  for  repugnancy  to  the  funda-  i  Suppose  they  had  contumaciously  refused  to 
mental  law,  it  only  says  that  the  will  of  the  [  decide  the  case,  or  had  prostituted  their  con- 
people  expressed  in  their  constitution,  is  para-  sciences  and  judgment  at  the  shrine  of  popu- 
mount  to  that  indicated  by  their  legislature,  larity,  or  had  assumed  legislative  omnipo- 
The  court  docs  not  repeal  the  law;  it  is  repealed  I  tence;  would  they  not  then  justly  have  sub- 
already  by  the  people  in  their  constitution — it  Ijected  themselves  to  the  imputation  of  "usur- 
never  was  law.  If  the  legislature  act  contrary  j  pation,"  or  of  official  corruption,  and  have  de- 
to  the  authority  given  by  the  people  in  the  j  served  removal  from  office?  Certainly.  In 
constitution,  they  act  without  authority,  and  j  what  a  predicament  then  are  they  placed?  If 
their  act  is  void.  The  constitution  is  superi-  jthey  will  not  adjudicate,  they  must  be  re- 
or  to  them — they  derive  their  power  from  it — [moved;  if  they  decide  honestly  "and  correctly, 


and  even  the  people,  who  are  the  ultimate  tie 
positoriesof  all  power,  cannot  control,  resist  or 
susperidit,  except  by  controlling  it  in  the  mode 
prescribed  by  themselves. 

Anry  individual,  therefore,  has  a  right  to  the 
protection  of  its  guarantees,  not  only  against 


Let 


they  are  "usurpers!"  A  doctrine  which 
volves  such  consequences  must  be  false, 
us  beware,vsaid  he,  that  we  shall  not  exemplify 
the  fable  of  the  wolf  and  the  lamb;  let  us  take 
care  that,  whilst  we  are  crying  out  murderers, 
xv  e  are  not  insidoiusly  assassinating  the  court; 


the  opposition  of  a  majority  of  the  Legislature,  and  not  only  violating  the  constitution,  but 
but  of  the  people  themselves.  For  the  constitu-  j  sapping  the  principles  of  civil  liberty  and 
tion  governs  majorities  as  well  as  minorities. —  blighting  the  honor  of  our  state.  The  court 
If  the  Legislature  can  enact  and  enforce  any  did  their  duty  honestly;  let  us  follow  their 
statute  which  they  may  think  fit  to  enact,  then  !  example.  They  usurped  no  power;  let  us  not 
they  are  above  the  constitution.  When  a  court  |  go  out  of  our  sphere  lest  we  be  guilty  of  "usur- 
decidcs  in  favor  of  an  individual,  every  other  pation." 

member  of  the  community  cannot  reverse  that  j  He  argued  next  in  support  of  the  second  ob- 
decision,  except  by  abolishing  the  constitu-  jection,  which  was,  that  whilst  the  preamble 
tion.  In  this  consists  the  value  of  the  consti-  [conceded  to  the  court  the  right  to  declare  a 
tution;  in  this  consists  the  political  liberty  of  [legislative  act  unconstitutional,  it  in  effect 
the  people.  Civil  liberty  is  exemption  from  op-  !  practically  denied  the  right,  by  requiring  as  a 
pression;  political  liberty  is  the  security  from  j  "SINK  QUA  NON"  to  its  exercise,  that  the  uncon- 
oppression  which  is  afforded  by  the  form  of  j  stitutionality  of  the  act  must  be  "OBVIOUS  AND 
government.  But  if  the  legislature  have  the  PALPABLE."  This  qualification,  (said  he,)  is 
right  to  violate  the  constitution,  and  then  ad-  "obviously  and  palpably"  unauthorized;  elso 
judicate  on  their  own  act,  the  citizen  may  en-  it  destroys  the  concession  of  right  in  ANY  case 
joy  civil  liberty,  but  he  has  no  political  liberty,  and  leaves  the  legislature  uncontrolled,  ex- 
The  constitution  then  would  be  tio  better  than  jcept  by  its  own  reason,  discretion  or  passions, 
an  net  of  assembly.  What,  lie  inquired,  was  meant  by  "obvious 

When  a  judge  is  called  on  to  decide  what  the  and  palpable,"  when  used  in  the'prcamble? 
law  is,  where  two  statutes  are  in  conflict  he  '•  Was  it  int"iuled  that  the  repugnance  to  the  con- 
must  pronounce  what  is  in  force — a  fortiori,  sfitution  should  be  obvious  to  all  men  of  all 
when  a  mere  statute  and  the  constitution  are  grades  of  intellect,  or  only  to  the  most  enlight- 
in  conflict,  he  must  declare  which  is  the  law — jened?  Must  it  be  palpable  to  those  who  art) 
it  is  inherent  in  the  nature  of  his  office.  If  the  !  torturing  their  minds  to  seize  some  pretext  for 
majority  violate! he  co'iFi-i^iHon  nvi  T;sni!  th«  '  not  r*-"ing  it?  To  those  who  are  dctiTtniuod, 


ON  THB  COURT  OF  APPEALS. 


from  pride,  interest  or  ambition,  to  shut  their  J  at  the  shrine  of   ambition   or    wanton  power.. 
eves  against  it?     Must  it  be  obvious  to  the  leg- !  Can  such  a  doctrine  as  that,   which  leads  to 

.»,  -1,1  •  ,  j     1      ^       1  •  11-  I',-  1  ,  I  1  *».         -m.-r  .  ,       • 


islature  who  passed  the  act,  or  it  must  be  obyi-  j  such  absurdities,  be  orthodox?  No;  it  is  worso 
ous  to  the  court  who  are  called  on  to  determine  |  than  Utopian.  But  again,  if  a  proposition  bo 
it?  Certainly  to  the  court.  JNTo  prudent  and  j  "obviously  and  palpably"  repugnant  to  tho 
intelligent  tribunal  of  justice  will  ever  refuse  j  constitution,  it  is  not  only  not  to  be  presumed 
to  enforce  the  legislative  will,  unless  that  will  ithat  the,  legislature  will,  even  in  the  wanton- 
be  to  that  tribunal  plainly  interdicted  by,  the  :  ness  of  arrogated  power,  adopt  it;  but  if  they 
constitution.  The  court  of  appeals  has  not  j  unexpectedly  should,  there  could  be  no  doubt 
done,  nor  ever  will  do  it.  A  Judge,  has  no;  that  the  next  legislature  would  repeal  it. 
personal  motive  to  do  it;  he  may  lose,  he  can- j  Therefore  there  would  be  no  necessity  for 
not  gain -by  it.  There  is  no  danger  of  his  ever  j  courts  to  possess  the  power  of  resisting  tho 
doing  it  unless  he  feel  imperiously  bound  by  ,  constitutional  encroachments  of  the  legisla- 
an  honest  and  clear  conviction  of  duty,  ture  on  the  rights  of  individuals,  unless  it 
Judges  do,  no  doubt,  frequently  lend  their  j  could  be  exercised  in  cases  which  the  legisla- 
agency  to  the  enforcement  of  the  legislative  j  ture  would  not  acknowledge  to  be  "obvious 
will,  when  they  are  inclined  to  believe  that  the  i  and  palpable"  violations  of  the  constitution,, 
paramount  will  of  the  people  has  been  disre-  j  because  it  is1  not  probable  that  it  ever  wouldbe- 
garded;  and  this  is  perhaps  proper.  There  is  ;come  necessary  to  exercise  it;  and  if  it  should 
no  danger  to  be  apprehended  from  the  Judicia- !  be,  it  could  not  be  exercised, 
ry,  except  that,  through  fear  of  offending  the  j  From  this  brief  view  it  irresistibly  re- 
legislature,  and  of  thereby  subjecting  them- ;  suits,  that  if  a  Judge  have  no  right  to  dfecido 
selves  to  a  perilous  responsibility,  they  may  that  a  legislative  act  is  unconstitutional,  when- 
tamety  connive  at  legislative  encroachments,  ever  obviously  so  to  him,  unless  it  be  "obvi- 
and  fail  to  enforce  constitutional  rights.  This  |'ously  and  palpably"  so  to  the  legislature,  ho 
is  .exemplified  by  the  history  of  all  jurispru-  ;  has  no  right  to  do  it  in  any  case.  But  it  is  ad- 
dencCj  especially  by  that  of  those  governments  '  mitted  in  The  printed  argument  that  he  has  that 
in  which  the  judges  were  dependent  on  the  right;  therefore  he  has  it,  like  all  other  judicial 
legislative  or  executive  department.  Hence  .rights,,  to  be  exercised  according  to  the  best 
the  wisdom  of  the  convention  in  endeavoring  dictates  of  his  own  conscience  and  judgment. 
to  render  the  judiciary  as  independent  of  the  It  is  his  privilege  and  his  official  duty  to  fol- 
legislature  as  would  enable  it  to  decide  all ,  low  the  light  of  his  own  reason.  It  is  the  duty 
Cases  according  to  its  honest  convictions  of  j  of  the  legislature  to  act  conformably  to  its  own 
right  and  duty,  without  consulting  or  fearing  |  judgment  in  enacting  statutes.  It  is  equally 
the  popular  branch  of  the  government.  The  incumbent  on  the  judge  to  follow  the  con  vie- 
right  to  judge  involves  the  right  to  the  faculty  itions  of  his  mind  in  expounding  them.  There 
of  judgment;  it  pre-supposes  the  existence  of 'arc  no  degrees  in  the  repugnance  of  legislation 
that  faculty,  and  necessarily  implies  its  free-  j  to  the  constitution.  An  act  is  either  constitu- 
domfrom  control  or  fear.  [tional  or  unconstitutional.  If  an  act  be  uncon- 

A  decision  given  contrary  to  the  opinion  of  j  stitutional,  it  cannot  be  material  whether  it  is 
the  judge,  is  certainly  not  HIS  judgment.  It  is  j  "obviously"  so  or  not.  It  is  void — and  it  is 
his  duty,  in  defiance  of  all  consequences,  to  because  it  is  void  that  the  courts  ought  not  to 


pronounce  his  own  opinion;  and  in  doing  so, 
who  can  say  that  it  was  not  obvious  and  pal 
pable  to  him?  If  it  be  not  obvious  to  him  on  a 


enforce  it.  A  judge  has  no  right  to  enforce  an 
unconstitutional  statute;  it  is  not  LAW,  and  ho 
is  appointed  to  administer  law.  It  does  not 


constitutional  question,  he  will  not  give  it;  if  j  belong  to  the  legislature  to  decide  what  the 
obvious  to  him,  although  imperceptible  to  ,  law  is,  but  to  the  judge.  He  cannot,  therefore, 
all  others,  he  is  bound  to  give  it.  But  it  |  without  usurpation,  without  an  abuse  and  per 
is  contended  that  the  court  have  no  right  to  version  of  his  office,  enforce  against  a  citizen, 
decide  an  act  of  assembly  unconstitutional,  un-  t  an  act  of  the  legislature  which  is  a  nullity, 
less  the  repugnance  be  "OBVIOUS  AND  PALP  A-  |  He  said  he  would  be  glad  to  be  informed  of  the 
DLK"  to  the  legislature!  How  would  the  court  j  difference  between  a  violation  of  the  constitu- 
«ver  ascertain  this  fact?  It  would  not  fairly  ition,  which  is  "obvious,"  and  one  which  is  not 
be  presumable  that  the  legislature  would  pass  j  "palpable"  to  every  understanding.  Each  is 
an  act  which  should  be  to  them  "obviously  void,  and  one  as  much  so  as  the  other,  for 


and  palpably"  unconstitutional.  If  they  ever 
should  be  corrupt  enough  to  do  so,  they  would 
be  proud  enough  not  to  acknowledge  it.  And 
if  the  judge  shall  have  the  right  to  pronounce 
their  acts  unconstitutional  only  when  they  are 
"palpably  and  obviously"  so  to  themselves, 
then  it  results  inevitably,  that  he  has  no  right 
to  give  his  own  opinion  unless  it  be  in  accord 
ance  with  their's;  and  hence  would  this  con 
sequence  result,  that  he  would  have  the  right 
in  no  case,  however  obvious  to  him,  to  declare 
a  legislative  act  unconstitutional,  but  would 
b«  compelled  to  violate  his  oath,  and  assist 
the  legislature  to  prostitute  the  constitution 


there  are' no  degrees  in  NONENTITY. 

But  it  is  contended,  said  Mr.  Robertson,  that 
a  judge  has  no  right  to  determine  by  construc 
tion  that  a  legislative  act  is  unconstitutional. 
This  is  an  unfortunate  subterfuge.  Must  rea 
son  be  proscribed?  Must  it  be  banished  from 
the  judicial  mind?  Must  a  JUDGE  have  no 
judgment?  What  is  the  province  of  reason  but 
to  construe?  What  is  the  object  of  construc 
tion  but  to  find  truth?  The  right  to  construe 
is  of  the  essence  of  the  judicial  character.  A 
judge,  without  the  faculty  to  construe  law, 
common,  statute,  or  constitutional,  would  be  a, 
phenomenon.  All  his  decision?  are  the  re- 


SPEECH  OF  MR.  ROBLRTSOtf, 


suit  of  construction.     His  principal  function  is 'decided  to  be  constitutional  by  the  Supreruw 


to  construe,  interpret,  expound  law,  and  the 
constitution  is  not  only  LAW,  but  above  all  other 
law. 

It  is  impossible,  even  in  the  common  affairs 
of  life,  to  detect  error  or  discover  truth,  with 
out  "construction,"  without  reasoning  from 


Court  of  the  United  States;  and  all  those  de 
cisions  had  been  ratified  and  acquiesced  in  for 
many  years,  by  the  intelligence  of  the  Union. 
Yet  to  judge  Rowan's  mind  the  charter  waa 
"obviously  and  palpably"  unconstitutional 
otherwise,  he  now  says,  that  he  would  have 


Borne  self-evident  principle  to  some  more   oc-jbeen  guilty  of  "usurpation"  in  presuming  to 
cult  truth,  and  so  on  by  a  regular  gradation  to  decide  against   the   validity  of  the  law.     Hn 
the  final  conclusion,  which,  when  it  is  educed, 
is  as  certain  as  the  primary  proposition,  from 
which  it  was,  by   a   regular  process,  drawn. 
How  are  the  most  important  truths  in  the  mor 
al,  intellectual,  and  physical  world  ascetained, 
except  by  the  faculty  of  reason  and  some  pro 
cess   of    construction?     The    most    recondite 


principles  are,  by  these  agents,  developed  with 
all  the  certainty  of  intuition.  _  The  truth  of 
even  a  mathematical  theorem  is  at  first  dis 
guised.  But  by  a. regular  chain  of  reasoning, 
from  one  proposition  to  another,  the  demonstra 
tion  is  complete  and  the  conclusion  irresistible. 
And  must  not  a  judge,  who  is  the  arbiter  of 
life  and  death,  be  permitted  to  trace  out  right 
and  detect  wrong  by  a  process  which  is  so 
successful,  and  unerring,  and  universal? 
Must  he  not  see  truth,  unless  she  be  present 
ed  naked  to  him?  If  so,  the  only  qualifica 
tion  of  a  judge  would  be,  not  mind,  not  integ 
rity,  not  experience,  but  instinct! 

But,  said  he,  we  have  an  apposite  illustra- 


WAS  THEN    A    JUDGE — HE    IS    NOW   A    LEGISLATOR. 

He  had  aright  to  do  as  he  did,  but  he  denies 
that  right  to  other  judges;  that  which  was  duty 
in  him  was  "usurpation"  in  them.  The  law 
establishing  the  Bank  was  not  "palpably"  un 
constitutional,  to  the  Congresses  and  Presi 
dents  who  enacted  it — nor  to  the  Supreme 
Court;  nor  to  any  one  individual  in  the  Uni 
ted  States;  yet  the  Judge  decided  that  it  was 
void,  and  whether  the  opinion  was  right  or 
wrong  he  had  the  right  to  decide  as  he  did,  if 
he  THOUGHT  as  he  decided.  He  had  a  right  to 
his  own  opinion;  why  shall  not  others  have  the 
same  right?  Others  have  the  same  right,  oth 
ers  have  always  exercised  it  and  always  will, 
as  long  as  they  are  honest  and  independent — « 
as  long  as  they  are,  in  the  genuine  import, 
JUDGES. 

He  thought  it  was  difficult  to  escape  the 
conclusion,  (he  said,)  that,  if  the  statute  be 
unconstitutional,  whether  it  be  "obviously  and 
palpably"  so  or  not,  the  court  had  a  right  to 


tion  of  what  the  gentleman  from  Jefferson  (Mr.  j  refuse  to  carry  it  into  effect.    They  were  bound 
Rowan)  means,  when  he  says  that  a  court  has  to  do  so,  by  their  oaths,  their  consciences,  and 
no  right  to  construe  an  act  of  assembly  to  be 
contrary  to  the  constitution,  in  the  celebrated 
and  very  elaborate  opinion  written  by  him 
self  when   on  the  bench,  in  the   case  of   J 
United    States'  Bank   against    Morrison, 
that  case  he  reasons,  and  metaphysically, 
through  about  thirty  pages  in  an  octavo 


the 
In 
too, 
vol 
ume,  lo  prove  that  the  charter  of  the  United 
States'  Bank  is  unconstitutional.  He  here 
"construed."  He  not  only  decided  that  the 
charter  was  unconstitutional,  but  declared  that 
he  would  not,  EVEN  AS  A  JUDGE,  SWORN  TO  SUP 
PORT  THE  CONSTITUTION  AND  LAWS  OF  THE  UNITED 

STATES,  submit  to  the  decision  of  the  Supreme 
Court.  And  did  he  think  that  the  law  cre 
ating  the  bank  was  "obviously  and  palpably 
unconstitutional?"  If  he  did,  why  did  he 
reason,  and  construe,  and  define  so  much  and 
so  unmercifully  as  he  did?  If  he  did  not,  ac 
cording  to  his  new  light,  HE  was  guilty  of 
usurpation. 

But  he  did  not  think  that  the  unconstitution 
ally  of  the  law  was  "obvious  and  palpable," 
or  he  would  nothave  "construed"  so  much,  to 
enable  others  destitute  of  his  happy  perspi 
cacity,  to  see  that  which  was  "palpable"  to  his 
mind  without  "construction."  Besides,  he 
•could  not  have  believed  that  that  was  "obvi 
ous  and  palpable,"  which  the  wisest  men  in 
America  had  never  been  able  to  see. 

Thej  Bank  law  had  been  decided  to  be  con 
stitutional  by  the  Congress  of  1791,  and  by 
President  WASHINGTON,  by  whom  it  was 
passed.  It  had  been  considered  constitution 
al  by  the  Congress  of  1815-16,  and  by  Presi 
dent  Madifon,  who  re-enacted  it.  It  had  been 


their  duty  to  the  constitution  and  the  people. 

What  would  the  people  do  with  a  Judge, 
who,  when  a  majority  of  the  Legislature 
assail  their  dearest  rights,  guaranteed  by  the 
constitution,  should,  through  fear  of  that  ma^ 
jority,  against  his  solemn  oath,  assist  in  the 
usurpation?  They  would  hurl  him  down,  as  a 
traitor  to  them  and  to  his  own  conscience. 

The  humble  citizen  cannot  be  disfranchised 
or  oppressed,  or  divested  of  any  of  his  consti 
tutional  rights,  although  a  dominant  majority 
in  the  Legislature  may  decree  it.  It  is  the  boast 
of  the  free  man  that,  however  poor,  obscure  or 
obnoxious  he  may  be,  he  is  protected  and  up 
held  by  a  constitution  which  knows  no  dis 
tinction  of  rank  or  condition,  and  which  is 
above  the  highest  and  strongest,  even  the  uni 
ted  Legislature  itself — and  it  is  his  consola 
tion,  that,  if  a  majority  should  trample  on  his 
rights,  the  constitution  has  provided  for  him  an 
independent  and  enlightened  court,  to  whom 
he  can  appeal  and  demand  JUSTICE.  But  it 
would  be  a  mockery  of  justice  to  tell  him, 
though  his  most  sacred  rights  had  been  inva 
ded  and  destroyed,  yet  if  his  deprivation  were 
not  "obvious  and  palpable"  to  the  next  legis 
lature,  there  was  no  redress:  for  the  injury  to 
him  would  be  as  afflicting,  and  to  the  constitu 
tion  as  extensive,  as  if  it  were  ever  so  "obvi 
ous;"  and  therefore  the  court  would  be  bound 
to  protect  him.  Any  other  doctrine  would 
strike  at  the  root  of  civil  liberty,  and  would 
subject  the  humble  and  the  weak  to  the  mercy 
of  the  wealthy  and  the  strong. 

The  constitution  is  the  sanctuary  for  the 
injured  and  oppressed,  and  the  judiciary  are 


OX  THE  COURT  OF  APPEALS. 


ordained  to  minister  at  its  holy  altar.  To  min 
ister  faithfully  they  must  have  pure  hearts  and 
sound  heads,  and  act  in  obedience  to  their  un 
biassed  dictates,  '-palpable  or  impalpable," 
popular  or  unpopular.  This  is  the  doctrine 
of  reason,  of  justice  and  of  the  constitution. 
This,  he  said,  led  him  to  his  third  and 
strongest  objection  to  the  1st  resolution,  which 
is,  that  it  strikes  at  the  independence,  of  the 
judiciary  and  at  the  equilibrium  of  the  consti 
tution.  He  considered  this  a  declaration  cf 
war  against  the  judges,  and  against  the  fun 
damental  principles  of  the  constitution — a 


proclamation  for  resistance 
beating  up  for  volunteers  in 
the  judiciary. 


and   anarchy — a 
crusade  against 


In  vain  may  it  be  acknowledged  that  the 
constitution  of  Kentucky  limits  the  powers  of 
the  legislature — in  vain  may  it  be  conceded 
that  it  distributes  all  delegated  sovereignty  in 
to  three  separate,  distinct,  and  independent 
departments;  that  which  is  LEGISLATIVE  to  the 
legislature,  that  which  is  JUDICIAL  to  the  judi 
ciary,  and  thatwhich  is  EXECUTIVE  to  the  execu 
tive  deparlment.  In  vain  may  it  be  yielded,  that 
these  move  in  different  spheres — are  erected 
for  mutual  checks  to  maintain  the  balance  of 
power.  In  vain  may  it  be  admitted,  that  the 
legislature  have  no  rigljt  to  pass  an  unconsti 
tutional  act,  and  if  they  do,  the  courts  may 
declare  it  void,  as  it  must  be.  In  vain  may  it 
be  boasted  that  Kentucky  has  constitutional 
liberty,  if  the  legislature,  consistently  with 
propriety  and  fundamental  principles,  can  an 
noy  or  control  the  judiciary  in  any  other  mode 
than  that  designated  in  the  constitution;  or  if 
they  can  usurp  judicial  power,  violate  the  con 
stitution,  overule  the  decisions  of  the  courts, 
and  enforce  their  own  invalid,  unconstitution 
al  acts  of  usurpation. 

This  difficulty  was  foreseen  by  the  author 


If  a  judge  be  guilty  of  corruption,  impeach 
him;  for  the  judicial  ermine  is  not  to  be  stained 
with  even  the  suspicion  of  such  delinquency. 
If,  for  any  other  cause  contemplated  by  the 
constitution,  it  be  proper  to-  remove  a  jud^e 
from  office,  remove  him  by  address.  But  do 
not  effect  the  object  of  indirection.  Why  did 
the  constitution  prescribe  two  modes  which 
have  been  designated,  unless  it  was  intended 
that  the  judiciary  should  be  exempt  from  any 
other  proceedings  by  the  legislature?  Thoae 
two  modes  of  operating  on  the  judges  were  de 
vised,  because,  without  any  delegation  of  pow 
er  on  the  subject  to  the  legislature  by  the  con 
stitution,  the  judges  could  not  be  reached  at 
all,  as  they  are  declared  by  the  constitution  to 
be  a  co-ordinate  department,  in  office  for  life, 
unless  removed  in  some  mode  provided.  If  it 
were  intended  that  the  legislature  should  have 
any  other  control  over  the  judges  and  their  de 
cisions,  why  was  it  not  mentioned,  and  why 
wevcthose  modes  specified? 

It  may  be  argued,  that  there  may  be  no  im 
propriety  in  the  legislature  expressing  its 
opinion.  To  this  it  may  be  replied  unanswer 
ably,  that  it  is  always  a  sufficient  objection  to 
such  a  course,  that  it  is  abstract;  that  it  is,  iu 
fact,  not  legislation;  for,  in  thus  acting,  the 
members  do  not  act  in  their  representative,  but 
individual  capacities,  and  their  opinion  can 
be  entitled  to  no  greater  effect,  than  that  of  a 
collection  of  the  same  number  of  their  con 
stituents.  If  such  a  proceeding  be  preparato 
ry  to  an  address,  or  impeachment,  it  might  be 
permissible.  But  this  is  disavowed.  Then 
what  is  the  object?  Is  it  to  compel  the  court 
to  change  their  opinion?  If  they  regard  their 
oaths  or  sense  of  duty,  this  will  not  be  effect 
ed,  and  if  it  could,  what  would  be  the  conse 
quence?  Nothing  more  nor  less  than  this; 
that  the  legislature,  after  passing  an  unconsti 


tutional  act,  may  instruct  and  compel  the  ju 
cliciary  to  carry  it  into  effect;  the  practical  ten 
dency  of  which  would  be  to  deprive  them  of 
the  power  of  deciding  on  the  constitutionality 


of  the  resolutions,  and  in  his  printed  argument 
he  endeavors  to  remove  it.  He  says  that  "the 
legislature  are  responsible  to  the  people,  and 
the  courts  to  the  legislature."  Therefore,  the 

legislature  have  a  right  to  do  as  their  judg-  of  the  acts  of  assembly,  although  it  is  ac- 
ments  or  passions  may  dictate  in  arraigning  knowlcdged  that  they  have  it.  For,  it  is  plain, 
and  controlling  that  department.  A  perfect  that  such  conduct  of  the  legislature  would 
nonsequitur — The  legislature  are  responsible!  have  this  effect  or  none.  Then  the  legislature 
to  the  people,  but  how?  the  courts  are  also  would  be  above  the  constitution,  and  not  that 
responsible,  and  how?  In  the  same  way,  and  above  them.  All  power  would  be  absorbed 
to  the  same  extent?  Is  that  the  argument?  If  j  by  the  legislature,  and  the  constitution  would 
it  be,  it  is  false;  if  it  be  not,  the  conclusion  is  i  be  no  more  sacred,  or  inviolable,  or  stable,  than 
illegitimate.  The  members  of  the  convention,  \  acts  of  the  legislature. 


knowing  the  necessity  of  such  a  principle,  de 
termined  that  the  three  departments  should,  as 
nearly  as  possible,  be  equipoised,  and  to  se 
cure  this  end,  also  determined  that  each  should 
be  independent  of  the  other,  except  so  far  as 
they  have,  in  the  constitution,  declared  oth 
erwise. 

The  independence  of  the  judiciary  is  consti 
tutional,     not    merely    legal.     It    cannot    be !  from  any  dependenc 
reached  by  the  legislature  in  any  other  modes  the  others,  except  a 
than    tho>e   by  the    constitution    prescribed. 
These  are,   impeachment  and  address.     'J  he 


If  a  bare  majority  can  eventually  effect  the 
downfall  of  the  judiciary,  by  censuring  their 
conduct  and  degrading  them  in  the  estimation 
of  the  people,  or  by  reversing  or  suspending 
their  decisions,  the  constitutional  equilibrium 
is  gone,  and  that  beautiful  theory  Avhich  sup 
poses  that  there  are  three  departments  of  pow 
er,  each  moving  in  its  appropriate  orbit,  free 


judiciary  is  established  by  the  constitution, 
and  can  only  be  controlled  by  it,  or  according 
to  its  principles. 


on  or  responsibility  1o 
provided  by  the  consti 
tution,  is  an  ILLUSION. 

Mr.  Madison,  in  the  47th  number  of  the  let 


ters  of  "Publius,"  speaking  of  the  necessity 
of  three  departments  of  government  indepen 
dent  of  each  other,  sayp,  "That  no  political 


58 


SPEECH  OF  MR.  ROBERTSON. 


truth  is  certainly  of  greater  intrinsic  value,  or 
is  stamped  with  the  authority  of  more  en 
lightened  patrons  of  liberty.  The  accumula 
tion  of  all  poorer,  legislative,  executive  and 
judicial  in  the  same  hands,  whether  of  one,  or 
a  few,  or  many,  and  whether  hereditary,  self- 
appointed  or  elective,  may  be  pronounced  the 
very  definition  of  tyranny." 

Every  constitution  in  the  United  Ftates  has 
been  so  modeled  as  to  prevent  this  accumula 
tion  of  power  in  the  hands  of  the  legislative 
department.  That  of  Kentucky  is  careful  to 
defeat  it.  But  all  its  wise  precautions  will  be 
unavailing,  if  it  be  proper  or  permissible  by 
the  constitution  to  adopt  the  resolutions  under 
consideration. 

All  the  apprehensions  of  the  convention 
were  directed  to  the  legislature,  because  there 
could  be  no  danger  of  usurpation  to  an  oppres 
sive  degree  by  the  judiciary.  They  well 
knew  that  the  legislative  would  be  the  most 
powerful  branch  of  the  government,  and  that 
there  would  be  danger  of  its  encroachments  on 
the  other  two;  they  knew  that  it  was  the  most 
popular  branch,  would  have  the  most  influence 
over  the  public  mind,  and  would  be  most  apt 
to  overleap  the  barriers  of  the  constitution. 

They  knew  that  the  judiciary,  from  the  na 
ture  of  its  functions,  and  from  its  very  consti 
tution,  would  be  the  weakest  department ;  hav 
ing  less  power,  less  ambition,  less  passion, 
less  influence  over  the  springs  of  public  opin 
ion,  than  the  legislature:  and  therefore  they 
provided  that  judges  should  be  irresponsible  to 
the  legislature,  except  for  corruption  or  some 
other  delinquency  for  which  they  might  be  re 
moved  by  TWO-THIRDS  of  all  the  votes  of  each 
house  on  charges  to  be  spread  at  length  on  the 
journals.  They  further  declared,  that 

"The  powers  of  the  government  of  the  state 
of  Kentucky  shall  be  divided  into  three  dis 
tinct  departments,  and  each  of  them  be  confided 
to  a  separate  body  of  magistracy,  to- wit: 
Those  which  are  legislative  to  one;  those  which 
are  executive  to  another;  and  those  which  are 
judiciary  to  another."  "No  person  or  collec 
tion  of  persons,  being  of  one  of  those  depart 
ments,  shall  exercise  any  power  properly  be 
longing  to  either  of  the  others,  except  in  the  in 
stances  herein  after  expressly  directed  or  per 
mitted. — Con.  of  Ky.,  Art.  /. 

But  this  legislature  is  now  called  on  to  erect 
itself  into  a  body  of  censors,  into  a  judicial 
tribunal,  a  grand  inquisitorial  body,  to  revise, 
and,  in  effect,  to  reverse  the  decision  of  the 
court  of  the  last  resort  known  to  the  constitu 
tion.  Who  gave  us,  said  he,  this  high  power? 
Who  made  us  a  court  of  appeals?  Who  vested 
us  with  judicial  power?  Not  the  constitution. 
It  declares  that  all  our  power  shall  be  exclu 
sively  legislative.  Not  the  people;  they  elect 
ed  us  to  legislate  for  them  according  to  the  au 
thority  given  by  them  in  the  constitution. 
They  did  not  send  us  here  to  subvert,  but  to 
execute  the  principles  of  the  government;  not 
to  arrogate  to  ourselves  judicial  powers,  not  to 
abuse  and  degrade  the  judges,  but  to  sustain 
them,  or  remove  them  from  office,  if  two-thirds 


should  believe  that  they  had  forfeited  their  of 
fice. 

As  well  might  the  legislature  endeavor  to 
control  the  governor,  or  the  judiciary  the 
legislature;  and  if  it  be  proper  to  endeavor  to 
reverse  the  decision  of  a  court,  it  would  be 
much  better,  before  it  is  given,  to  instruct 
the  court  by  resolution  what  decision  to 
render. 

All  the  power  which  the  legislature  has 
over  the  courts  is  defined  carefully  and  with 
precision,  in  the  constitution.  If  it  has  any 
other  power,  whence  derived,  how  limited? 
It  has  no  legitimate  origin,  and  would  be  il" 
limitable. 

If  the  legislature  can  reverse  the  decisions 
of  the  courts,  or  resist  them  successfully,  ei 
ther  directly  or  indirectly,  where  is  judicial 
independence?  All  prostrate  at  the  feet  of  an 
irritated  majority — all  overwhelmed  in  the 
uncontrolled  and  appalling  power  usurped  by 
the  legislature.  Sir,  said  he,  we  arc  treading 
on  dangerous  ground— we  arc  about  to  estab 
lish  a  perilous  precedent.  If  we  can  para 
lyze  the  courts  and  refuse  to  execute  their  de 
crees,  the  constitution  is  a  shadow,  the  power 
of  the  courts  an  illusion,  political  and  civil 
liberty  a  chimera,  all  within  the  gigantic 
grasp  of  the  power  of  the  legislature,  all  de 
pendent  on  legislative  will.  And  is  there  no 
necessity  for  the  barriers  and  checks  of  the 
constitution?  Should  the  legislature  be  above 
them?  If  not  jealously  watched  and  guard 
ed,  is  there  not  danger  that  it  will  prostrate 
them  and  assume  to  itself  unbridled  domin 
ion?  Listen  to  the  voice  of  history  and  expe 
rience;  look  into  the  volume  of  nature,  and 
what  will  you  find?  You  will  find  that  there 
is  great  danger  of  encroachments  by  the  leg 
islative  department,  and  great  necessity  to 
restrain  and  muzzle  it.  Let  us  hear  what  Mr. 
Madisun  says  on  this  subject.  In  the  48th 
number  of  "Publius,"  after  showing  that  pa 
per  barriers  between  the  three  departments 
are  insufficient,  he  says  that  "experience  has 
shown  that  some  more  adequate  defence  is  in 
dispensably  necessary,  for  the  more  feeble 
against  the  more  powerful  members  of  the 
government.  The  legislative  department  is 
everywhere  extending  the  sphere  of  its  activi 
ty,  and  drawing  all  power  into  its  "IMPETU 
OUS  VORTEX."  In  the  same  number  he  says, 
that  "in  a  representative  republic,  where  the 
executive  magistracy  is  carefully  limited,  and 
where  the  legislative  power  is  exercised  by  an 
assembly,  which  is  inspired  by  a  supposed  in 
fluence  over  the  people,  with  an  intrepid  con- 
fidenceinits  own  strength;  whichis  sufficient 
ly  numerous  to  feel  all  the  passions  which  ac 
tuate  a  multitude;  yet  not  so  numerous  as 
to  be  incapable  of  pursuing  the  objects  of 
its  passions  by  means  which  reason  pre 
scribes;  it  is  against  the  enterprising  ambi 
tion  of  this  department,  that  the  people  ought 
to  indulge  all  their  jealousy,  and  exhaust  all 
their  precaution." 

Mr.  Jefferson,  too,  in  his  notes  on  Virginia,  in 
ppcaking  of  the  necessity  of  three  departments, 


ON  THE  COURT  OF  APPEALS. 


and  of  the  defect  in  the  old  Virginia  constitu 
tion,  in  not  making  the  courts  sufficiently  in 
dependent  of  the  legislature,  says:  "They, 
(the  legislature)  have  accordingly  in  many 
instances  decided  rights  which  ought  to  have 
been  left  to  judicial  controversy."  The  board 
of  censors  selected  in  Pennsylvania,  in  1783, 
to  enquire  into  violations  of  the  constitu 
tion,  reported  many'  by  the  legislature,  and 
among  others  mention  this,  "that  cases  be 
longing  to  the  judiciary  were  frequently 
drawn  within  legislative  cognizance  and  de 
termination." 

Mr.  Madison  further  says,  in  No.  51  of"Pu- 
blius,"  that,  "In  order  to  lay  a  due  foundation 
for  that  separate  and  distinct  exercise  of  the 
different  powers  of  government,  which,  to  a 
certain  extent,  is  admitted  on  all  hands  to  be 
essential  to  the  preservation  of  liberty,  it  was 
evident  that  each  department  should  have  a 
WILL  of  its  own."  Further  on  he  says,  "But 
the  great  security  against  a  gradual  concentra 
tion  of  the  several  powers  in  the  same  depart 
ment,  consists  in  giving  to  those  who  adminis 
ter  each  the  necessary  constitutional  means, 
and  personal  motives  to  resist  the  encroach 
ments  of  the  others."  Again  he  says,  "In  a 
society  in  which  the  stronger  faction  can  read 
ily  unite  and  oppress  the  weaker,  anarchy 
may  as  truly  be  said  to  reign,  as  in  a  state  of 
nature,  where  the  weaker  individual  is  not 
secured  against  the  violence  of  the  stronger." 
And  in  the  same  number  he  says,  that  "in 
framing  a  government  which  is  to  be  adminis 
tered  by  men,  over  men,  the  great  difficulty 
lies  in  this:  you  must  first  enable  the  govern 
ment  to  control  the  governed,  and  in  the  next 
place,  OBLIGE  it  to  control  itself.  A  depen 
dence  on  the  people  is,  no  doubt,  the  primary 
control  of  the  government;  but  experience  has 
taught  mankind  the  necessity  of  auxiliary 
(precautions." 

These,  said  Mr.  Robertson,  are  admonitory 
lessons.  Our  forefathers  profited  b>  them, 
and  endeavored  to  secure  their  benefits  to  us, 
but  we  are  unwilling  to  enjoy  them.  You  see 
in  them  the  danger  of  legislative  usurpation, 
and  the  wisdom  of  the  convention  in  endeav 
oring  to  check  it,  by  an  honest  judiciary;  and 
their  solicitude  that  that  judiciary  should  have 
themeans  and  the  motives  to  check  it — should 
have  a  will  of  its  own,  and  be  so  far  indepen 
dent  of  the  legislature  as  not  to  be  afraid  to 
exert  it.  But  we  are  endeavoring  to  disre 
gard  the  wisdom  of  the  world  and  to  prostrate 
the  judiciary,  not  by  removal,  but  by  abuse, 
so  that  in  future  they  shall  never  dare  to  de 
cide  against  the  legislature.  PROTECT  THE 

CHARACTER  OF  YOUE  JUDGES  AS  LONG  AS  YOU  PER 
MIT  THEM  TO  HOLD  THEIR  SEATS;  yOU  OWC  it  to 

your  country  and  to  yourselves. 

It  is  necessary  that  the  court  should  pos 
sess  the  confidence  of  the  people.  What  good 
can  be  effected  by  destroying  it?  Do  not  de 
grade  your  judges  and  leave  them  in  office — it 
will  degrade  yourselves  and  your  constituents. 
If  you  cannot  remove  them,  you  cannot  touch 
them.  You  have  no  right  to  control  their  dc- 
tision — thepartieslitigantliave  a  vested  right 


to  it.  Nothing  which  you  can  do  can  divest 
it.  But  if  you  have  the  right  to  degrade  them 
for  giving  an  honest  opinion,  you  may  deter 
them  from  ever  deciding  that  any  act  you  pass 
is  unconstitutional.  This  would  suit  the  am 
bitious  and  designing.  Such  is  the  design  of 
the  resolutions — they  have  no  other  object  .or 
tendency. 

There  is  no  danger,  continued  Mr.  Robert 
son,  that  the  judges  will  ever  overrun  the  lib 
erties  of  the  people.  Who  ever  heard  of  a 
judge,  who  was  not  made  the  instrument  of 
either  the  executive  or  legislative  department, 
oppressing  a  whole  community.  He  may  be 
an  oppressor  indeed,  but  it  is  only  when  he  is 
made  the  engine  of  the  legislature  or  the  min 
ion  of  the  executive;  it  is  a  dependent,  not  an 
independent  judge  who  is  to  be  feared.  Who 
ever  heard  of  a  judge  mounting  to  dominion 
over  the  liberties  of  any  people?  No  one  ever 
did  or  ever  will. 

The  ambitious  man,  who  meditates  supreme 
way  over  his  country's  destinies,  never  mounts 
the  Bench.  He  mounts  the  "stump,"  and 
winds  himself  into  public  favor,  by  nattering 
the  prejudices  and  passions  of  the  majority,  as 
the  serpent  decoyed  Eve.  The  man  destitute 
of  principle,  who  stifles  his  conscience,  always 
rides  the  current,  delights  in  raising  a  storm 
that  he  may  mount  it  and  direct  the  whirl 
wind;  whose  ostensible  object  is  his  country's 
glory,  while  the  delight  of  his  soul  is  su 
preme  power;  in  whose  iips  is  liberty,  but  in 
whose  heart  is  monarchy!  This  is'ihe  man 
whom  his  countrymen  may  fear,  tnich  was 
Julius  Ciesar,  Oliver  Cromwell,  and  all  others 
who  have  stolen  from  the  people  their  liberty. 
To  such  men  the  most  appalling  object  is  an 
independent,  virtuous  judiciary.  That  checks 
their  career.  They  never  can  seize  the  crown 
until  the  judiciary  is  undermined.  Hence  it 
will  always  be  found  that  they  denounce  in 
dependent  judges,  and  endeavor  to  persuade 
the  people  that  they  are  oppressed  by  them. 
Their  only  resource  is  the  omnipotence  of  the 
legislature,  where,  if  they  can  get  a  scat,  and 
can,  by  counterfeiting  their  politics  and  dis 
guising  their  designs,  get  at  the  head  of  the 
majority,  they  stand  the  uncontrolled  arbiters 
of  their  country's  destinies. 

But,  said  M"r.  Robertson,  there  is  a  peculiar 
objection  to  the  resolution  which  proposes  re 
sistance.  This  portion  he  thought  was  too 
strongly  concocted.  It  is  only  necessary  to 
present  it  to  the  lips  to  have  it  rejected,  ^all 
Kentucky  set  the  first  example  of  rebellion? 
Such  he  would  call  it,  for  such  it  was,  against 
the  constitution  and  against  the  settled" prin 
ciples  of  constitutionalliberty.  He  would  not 
like  to  see  an  act  passed  conformably  to  tho 
resolution;  it  would  bring  the  state  into  con 
fusion  and  anarchy;  the  constituted  authori 
ties  would  be  put  down,  or  there  would  be  an 
interregnum  of  political  principle,  and  civil 
cornmoiion  would  ensue. 

The  clerk  who  would  obey  your  mandate 
and  disregard  the  decision  of  the  judge  would 
be  removed  from  office  by  the  court  of  appeals 
for  a  dereliction  of  dutv.  If  he  should  obev 


SPEECH  OF  MB.  BOBfcBTSON, 


;>r  for  the  Legislature  to  be  restrained  by  the 
constitution.  If  such  be  the  principle  of  civil 
liberty,  he  did  not  desire  or  claim  to  be  one  of 
her  votaries.  She  was  a  licentious  courtezan, 
not  the  chaste  vestal  virgin  exhibited  in  the 
constitution, 
consisted  in 


the   court  and  not  the  legislature,  the   clerk 

Avould  be  sued  by  the  debtor,  and  the  legisla 
ture  would  be  bound  in   honor  to  indemnify 

him.     One  part  of  the  community  Avould  be 

throAvn  into  active  opposition  against  another, 

and  there  would  be  no  law  but  that  of  force,  if 

any   attempt  should  be  made  to  enforce  the 

act. 

But,  continued  he,  the   two  years   replevin 

act  is  decided  to  be  prohibited  by  the  federal 

constitution.  An  appeal  has  gone  to  the  su 
preme  court;  suppose  that  Court  shall  affirm  the 

decision.    What  then?     RESIST    THE    GENERAL 

GOVERNMENT?     Whenever  such   a  crisis   shall 

occur,   AVC  shall  see  a  practical  illustration  of 

the  benefits  of  the  federal  constitution— the  ad 
vantages  of  the  union  of  the  states.  We  may 

see  another  Shay's  insurrection,  but  there  the 

catastrophe  will  end.     Let  it  not  be  forgotten 

that  it  is  the  federal  constitution  that  has  been 
violated,  and  that  even  a  removal  of  your 

judges  Avill  not  effect  the  decision.     Kentucky 

'has  no  right  to  prevent  its  enforcement;  it  be- 
iono-slo  all  the  states  and  must  be  as  uniform 
in  its  application  as  it  is  immutable  in  its 
principles. 

The  resolutions  in  any  aspect  can  do  no 
possible  good,  they  may  do  much  mischief. — 
They  may  establish  a  precedent,  which,  if 
sanctioned  by  the  people,  would,  in  time,  tear 

down  one  pillar  of  the  political  temple,  and  |  themselves.  They  possess  even  yet  all  the  el- 
the  AY  hole  fabric  Avill  tumble  into  ruins.  But  emcntsof  moral,  of  physical  and  of  intellect- 
tliey  can  administer  no  relief.  They  will  on-  mv[  greatness.  Do  not  stifle  or  relax  them; 
ly  excite  hopes  which  can  never  be  gratified.  ]jut  iucitc  them  to  development  and  activity. 
There  is  only  one  remedy.  Let  the  affairs  of  This  can  only  be  done  by  a  stable  fixed  policy: 
the  country  go  on  in  their  usual  and  natural  j  nn  inflexible  adherence  to  the  principles  of 
channel;  let  the  constitution  prevail;  give  up  |  SOU11J  political  economy  and  of  undisturbed 
party  strife  and  party  pride  and  ambition,  and  justicc.  Do  not  endeavor  to  excite  the  people 
act  only  for  the  permanent  welfare  and  honor  i  iollgCr.  They  are  now  quiescent;  they  Avil!  do 
of  the  people.  Then  confidence  Avillbe  in-  right;  they  will  understand  their  constitution- 


He  thought   that  civil    liberty 
equal  and   exact   justice,    and 
should  still  cling  to  that  opinion. 

Any  other  liberty  thair that  enjoyed  in  the 
inviolability  of  private  rights,  and  integrity 
of  the  constitution,  is  licentiousness.  No  com 
munity  Avas  ever  legislated  out  of  debt,  nor 
ever  will  be.  If  Kentucky  Avould  profit  by  an 
afflictive  experience,  she  might  yet  be  Aviso  and 
prosperous. 

This  was  a  consummation  (he  said)  Avhich 
he  most  fervently  prayed  for.  His  only  in 
terest  was  the  glory  and  happiness  of  his 
State.  He  was  bound  to  it  by  many  and  strong 
ties.  It  was  his  birth  place.  It  embosomed 
all  that  AVas  most  dear  and  endearing  to  him, 
and  he  enjoyed  a  melancholy  pleasure  in  the 
hope  that  it  Avould  be  the  repository  of  his  ash* 
es.  This  State  cnce  occupied  a  proud  emi 
nence  in  the  Union;  "KENTUCKIAN"  was  a  cer 
tain  passport,  for  all  Avho  bore  it,  to  the  esteem 
and  affection  of  all  who  loved  the  braAre  and 
the  noble.  It  is  not  so  now;  but  he  did  not 
even  yet  despair  of  an  eventual  restoration,  if 
the  people  are  permitted  to  think  and  act  for 


al  rights  and  at  last  sustain  their  constitution 


discus- 


spired,  industry  will  be  stimulated,  morality 
will  resume  her  empire,   and  virtue  and  pros 
perity  triumph.     '1  he  people  will  look  then  to 
the  only  sources  of  real  relief — their  own  con 
duct,  a  rich  soil  and  a  benificent    Heaven.—  stract,  he  would  (continued  Mr.  R.)  proceed  to 
But  persist  in  legislative  encroachments,  and   give  gome  reasons   in  support  of  his  opinion 
relief  itself  is  hopeless.    Every  legislative  in-   that  the    decisions    of   the  Court  of    Appeals 


Having  disposed  of  the  first  topic  of 
sioii  by  suggesting  some  of  the   most  promi 
nent  objections   to  the  resolutions    in  the  ab- 


terference  will  render  another  more  necessary. 
Keep  up  the  credit  of  your  paper,  as  well  as 
you  can  by  prudent  means.  Do  not  relax  the 
system  in  relation  to  it  which  has  been  adopt 
ed;  wind'it  up  slowly  but  certainly.  The  bank 
is  a  sensitive  plant,  touch  it  and  it  dies.  Let  it 


was  correct.  He  would  endeavor  to  show  that 
any  two  years  replevin  law  Which  is  retroactive 
in  its  operation  on  contracts,  is  unconstitutional 
and  void.  He  would  confine  himself  to  the  prin 
ciple  decided  by  the  court,  and  although  other 
objections  might  be  urged  against  the  validity 


alone  and  the  people  will  have  confidence  in  I  of'the  replevin  acton  which  they  adjudicated, 
it,  and  that  alone  will  make  it  good:  and  as  |  ]^Q  should  only  argue  that  itwas"interdictedby 
its  paper  is  withdrawn,  a  better  currency  Avill  j  that  clause  in  the  federal  constitution,  which 
inevitably  supply  its  place.  You  will  never  declares,  that  "no  State  shall  pass  any  ex  post 
have  a  specie  currency  while  you  have  depre- 1  facto  iaw  Or  law  impairing  the  obligation  of  con- 


ciated  paper 

The  opinion  of  t''^  court  is  not  ruinous;  it 
ill  inflict  little  or  no  injury.     It  is  the  b^st 


will 


tracts." 

In  analysing  this   subject,  (i=aid  he)  it  is 

only  necessary  to  ascertain  with   satisfactory 

opinion  for  the  people  which  could  have  been  precision  what  is  the  constitutional  import  of 
given;  und  if  it  should  happen  to  be  severely!  the  expression,  "the  obligation  of  contracts," 
felt  by  some,  it  is  not  the  fault  of  the  court  or  and  what  is  "impairing"  that  obligation.  Al- 
of  the  constitution  Nor  is  the  opinion  "sub- '  though  there  seemed  to  be  a  great  diversity  of 
versive  of  the  principles  of  civil  liberty,  "un-  opinion  in  relation  to  what  is  the  obligation  of 
less  it  be  inconsistent  with  those  principles  for  a  contract,  yet  he  thought  it  strange  that  no 
men  topnv  their  debts  according  to  contract,  one  of  those  who  denied  the  definition  given 


OS  THE  OOtJBT  OF  APPEALS. 


by  the  court,  had  ever  been  able  to  state  in  what 
the  obligation  of  a  contract  consists.  Even  the 
Jong  preamble  to  the  resolution  (incredible  as 
it  may  appear  to  one  who  never  read  it)  docs 
not  attempt  to  define  it.  The  author  of  that 
argument  denounces  the  court  for  imputed  er- 


United  States,  means  what  it  docs  elsewhere, 
and  what  it  imported  in  common  use  at  the 
time  it  was  inserted.  To  oblige  is  to  bind, 
force,  coerce,  <fcc.  The  derivative,  u  obliga 
tion,  "  is  the  binding,  forcing  power  or  quality 
of  the  thing.  It  is  defined  by  Justinian  to  be 


ror;    yet    the    anxious   reader    looks   in  vain  I  the  ligament  which  binds,  and  by  Potkier  to  be 
through   the    twenty-six    pages   of    swelling  '  "-vinculum  jut  is"  or  bond,  or  tie,  or  chain  of 


sentences,    and 
for    the   source 


pages 
"  metaphysical " 


of  that   error.     He  is  dumb 


subtilty,  right:  a  moral  obligation  or  ligament  is  defined 


to  be  that  which  binds  the  conscience,  which  is 


the  all  important  question,  what  is  the  the  law  of  nature;  and  a  legal  obligation,  of 
legal  obligation  of  a  contract.  He  would  1  course,  that  which  binds  in  or  by  civil  law. — 
be  glad  to  know  (said  he)  what  right  any  gen-  The  obligation  of  a  contract  is  that  which  in- 
tleman  has  to  assert  so  dogmatically  that  the  duces,  compels,  or  ensures  its  enforcement.  It 
definition  given  by  the  court  is  incorrect  until  is  not  the  instrument  or  agent  by  which  it  is  co- 
he  can  shew,  or  at  least  attempts  to  shew,  that  \erced,  but  the  right  which  the  obligee  has  to  use 
some  other  definition  is  the  right  one.  The  coercion,  that  is  the  essence  of  the  obligation.-^ 


obligation  of  a  contract  is  some  one  thing,  cer 


tainly.     It  is 


"&> 
necessary   to  ascertain  what  it- 


is,  and  that  it  is  radically  different  from  what 
the  court  say  it  is,  before  their  decision  should 
be  arraigned.  The  author  of  the  printed  ar 
gument  might  certainly,  in  his  long  discussion, 
have  shown  of  what  he  thought  the  obligation 
of  a  contract  consists,  if  he  really  believes 
that  it  does  not  consist  of  what  the  court  has 


This 
both. 


is  cither  moral  or  legal,  and 
When  there  is  110  municipal  law,  whicl 


will  compel  the  performance  of  nn  engagement, 
that  which  induces  the  performance,  is  the  nat 
ural  law,  and  is  called  the  moral  obligation, 
Avhich  is  either  internal  or  external,  imperfect 
or  perfect.  It  is  internal  when  conscience  is 
the  only  persuasive  or  coercive  power.  Such 
is  the  obligation  of  benevolence,  gratitude,  and 


decided  that  it  does;  for  before  he  can   know  la  long  train  of  moral  virtues.     The  obligation 
that  the   court   erred,  he   must  know  that  the  of  benevolence  and    gratitude,  is  the  will  of 

i  .  r*»  i          ,     ,  -i  1       *  , jl 1 f      _  TIT        '         __   _11        1 


obligation  is  different  from  what  the  court  say? 
it  is,  and  to  know  that,  he  must  know  what  it 
is.  He  ought,  therefore,  not  only  in  justice  to 
the  court,  but  to  himself  and  his  own  charac 
ter  for  understanding  to  have  condescended  to 
disclose  the  great  secret — for  secret  it  is  if  the 
court  has  not  found  it,  and  secret  will,  it  is 
feared,  always  remain.  At  the  threshold,  there 
fore,  it  is  fair  to  infer  that  the  judges  are  right 
until  their  opponents  can  tell  What  they  believe 
the  legal  obligation  is,  and  from  their  silence 
it  is  equally  fair  to  conclude  that  they  are  un 
able  to  give  any  definition  Which  is  even  plaus 
ible;  and  that  therefore  the  court  have  "hit  the 
nation  the  head." 

It  is  remarkable  that  in  the  printed  speech, 
if  he  had  even  a  glimmering  of  light  on  the 
subject,  the  author  seems,  in  three  different 

S laces,  to  have  given,  no  doubt  inadvertently, 
ifferent  views  of  the  obligation  of  a  contract, 
each  irreconcilable  with  the.  other,  two  palpa 
bly  wrong,  and  one  in  exact  accordance  with 
that  .given  by  the  court.  He  expected  to  de 
rive  some  assistance  from  the  argument  of  the 
fcntleman,  and  thought  he  could  shew  that  he 
ad  (without  intending  it)  fortified  the  decis 
ion  of  the  court  impregnably .  It  has  been  said 
that  this  argument  "is  a  conclusive  and  tri 
umphant  refutation  of  the  reasoning  of  the 
<court;"  he  thought  that  it  would  require  micro 
scopic  vision  to  find  where  the  refutation  lurks. 
He  thought  that  it  was  a  most  "triumphant" 
vindication  of  the  court's  opinion,  because  it  is 
supposed  to  embody  all  that  can  be  urged 
against  it,  and  when  that  is  examined  and  ana- 


deity,  the  law  of  our  nature.     We  are  impelled 
or  induced  to  acts  of  benevolence,  <fec.,  by  a 
sense  of  respect  for  that  will,  and  by  the  dic 
tates  of  that  law  written  on  the  heart;  but  tho 
obligation  is  internal,  it  exists  only  in  the  bo 
som,  and  is  imperfect,  because   no  external  of 
physical  force  can  be  exerted,  to   compel.     In 
a  state  of  nature,  where  there   is  no  law  but 
that  of  Heaven,  man  is  responsible  only  to  his 
God  for  breaches  of  the  imperfect,  internal  ob* 
ligations;  the  obligation  consists  in  a  sense  of 
his  responsibility  to  his  maker   and  his  own 
conscience;    "impair"   this  accountability,  of 
stifle  conscience,  and  you  "impair  the  obligation." 
But  when  a  man  is  responsible  to  his  fellow- 
man,  who  has  a  right  to  use  force,  the  obliga 
tion  is  external  and  perfect;  and  as  this  perfect 
moral  obligation  consists  in  the  right  to  apply 
force,  it  can  only  be  impaired   by  affecting  the 
force,  or  the  right  to  use  it.     If  the  right  to  use 
force  be  withdrawn,  the  obligation  is  therefore 
destroyed;  if  the  right  be  rendered  less  certain 
or  efficient,  the  obligation  must  be  impaired.— 
These  are  moral  obligations.     But  in  a  state  of 
society  there  are  legal  obligations.     Man  hav 
ing  surrendered  to  society  his  natural  right  to 
exert  force  on  his  fellow  man,  society  alone  has 
the  right  to  apply  it.     As  the  perfect  moral  ob 
ligation,  in  a  htate  of  nature,   consisted  solely 
in  the  force  of  the  individual,  or  rather  in  his 
right  to  use  it,  so  in  society,  when  transformed 
into  a  legal  obligation,  it  consists  exclusively 
in  the  force  of  the  ;  community,   or  with  more 
precision,  in  the  individual's   right  to  use  it; 
and  as    each  individual  composing  the  body 


lized,  it    is  found    to   contain  no  argument 'politic,  has  surrendered  his  natural  right  to 


-against  the  principle  decided  by  the  court,  but 
(without  intending  to  do  it)  sustains  it:  for 
wherever  there  is  anything  tangible  in  it,  it  is 
in  unison  with  the  doctrine  of  the  court. 

" Obligation,"   in  the  Constitution    of  the 


force,  the  aggregate  community  is  bound  t 
ertitfor  the  protection  of  his  rights;  and  if 
the  laws  of  society  direct  the  application  of 
the  united  force  in  particular  cases,  the  legal 
obligation  of  those  cases  is  the  right  to  have  the 


Gt 


SPEECH  OF  MR 


force  exerted.  Tkclegetl  "obligation,"  then,  of 
a  contract,  is  essentially  and  exclusively,  the 
right  of  the  obligee  to  compel  the  obligor  by  law. 
If  this  be  not  the  legal  obligation,  there  is  none; 
and  there  would  be  no  difference  between  a 
?.egal  and  moral  obligation,  or  between  a  right 
in  a  state  of  nature  and  a  right  in  a  social 
state.  If  the  civil  law  will  not  enforce  a  par 
ticular  species  of  contract,  such  contract  has 
•no  legal  obligation:  its  obligation  is  purely 
moral,  binding  only  on  the  conscience;  as  in 
the  case  of  contracts  prohibited  by  laAV,  such 
•as  usurious  contracts  and  others.  Can  any  one 
believe  that  an  usurious  contract,  if  prohibited 
fay  law,  or  a  contract  proscribed  by  the  statute 
t)f  frauds  and  perjuries,  has  any  legal  obliga 
tion?  They  certainly  have  none,  because  the 
law  will  not  enforce  them.  Is  it  not  absurd  to 
say  that  that  has  a  legal  obligation,  AVhich  is 
contrary  to  laAV?  When  there  is  no  laAV  to 
compel,  there  can  be  no  legal  obligation.  A 
contract  contrary  to  law,  is  not  in  law  obligatory: 
a  contract  without  laAV,  is  not  in  law  binding: 


consideration,  promise  to  pay  B.  $100  on  a 
particular  day,  and  fail  to  pay  on  the  day, 
i*.  will  have  the  right  to  coerce  an  indemnity 
for  non-payment,  by  appealing  to  the  law.  If, 
Avhen  the  contract  Avas  made,  the  law  gave  the 
right  to  B.  to  coerce  A..,  that  legal  right  can 
not  be  taken  aAvay  by  future  legislation,  with 
out  destroying  thelegal  obligation  of  the  con 
tract;  for  whenever  the  law  refuses  to  oblige, 
there  can  be  no  legal  obligation.  And  by  a  par 
ity  of  reasoning  the  right  which  A.  had  by  law 
to  coerce  B.  cannot  be  suspended,  postponed, 
or  rendered  less  efficient  or  certain,  without 
"impairing"  that  obligation.  If,  when  a  con 
tract  is  made,  the  law  of  the  place  is  pledged 
to  enforce  it,  Avould  it  be  constitutional  for  the 
legislature  afterwards  to  repeal  all  laAvs  giving 
remedy  and  thereby  leave  the  obligee  in  the 
contract  in  a  worse  condition  than  he  would 
have  been  in,  in  a  state  of  nature-?  In  a  natu 
ral  state  he  Avould  have  the  right  to  coerce  the 
obligor  by  using  individual  force,  but  this 
right  having  been  surrendered  to  society,  and 
that  society  having  abrogated  all  law  alloAving 
a  resort  to  social  force,  there  would  be  nothing 


a  contract  permitted  by  law  but  which  the  LIAV 

will  not  enforce,  is  not  obligatory  by  law,  but 

binds  only  the   conscience  of  the  parties;  the  j  left,  but  the  naked  contract,   without  cither  a 

obligation  of  such  a  contract,   then,  is  moral,  \ perfect  moral,  or  a  legal  obligation;  the 

not  legal.     Some  contracts  have  both  amoral 

and  a  legal  obligation;  some  have  one  and  not 


casket 

would  remain,  but  the  jewel  would  be  despoil- 
ed;  the  body  would  be  left,  but  the  vital  spark, 


the  other;  and  some  have  neither.     A  contract  j  the  very  soul  which  animated  it,  would  be  de- 


which  is  not  contrary  to  the  laws  of  deity  or  of 
society,  and  which  the  latter  will  enforce,  has 
both  a  moral  and  legal  obligation;  the  moral  is 
not  destroyed  by  the  legal:  the  latter  is  only 
superadded  to  the  former.  The  obligation  is 
moral,  because  it  is  binding  in  conscience;  it 
is  legal  because  it  is  binding  in  law;  as  it 
would  not  be  moral  if  not  binding  in  con 
science,  it  could  not  be  legal  if  not  binding  in 
law.  If  then  a  contract  have  a  legal  obligation 
only  when  the  law  will  enforce  it,  it  is  the  right 
'to  use  the  power  of  the  law  to  enforce  it,  which 


stroyed.  Mich  a  law  would  destroy  the  legal 
obligation  of  the  contract.  No  man  can  or  will 
deny  this:  it  must  be,  and  certainly  is,  conce 
ded  by  every  member  of  the  committee.  If  a 
law  denying  remedy  would  destroy,  would  not 
a  law,  suspending  or  protracting  remedy,  "im- 
paii"  the  legal  obligation?  The  conclusion  is 
not  only  fair,  but  inevitable.  In  the  one  case, 
the  obligation  would  be  destroyed,  because 
there  would  be  no  laAV  to  oblige;  in  the  other, 

the   right  to 


it  would   be   impaired,   because 
oblige  by  law,  (which  alone  is  the  legal  obli- 

alone  constitutes  the  essence  of  the  legal  obli-  gation)  would  be  rendered  less  _  valuable,  less 
gation,  and  consequently  anything  Whrch  di-  J  certain,  less  efficient,  less  coercive.  When  the 
minishes  this  force  or  impairs  the  right  to  have  I  right  to  enforce  a  contract  is  barred  by  the  stat- 
it  exercised,  inevitably  impairs  the  obligation,  j  ute  of  limitations,  the  legal  obligation  of  the 
•If  the  law  of  society  declare  that  an  usurious  j  contract  is  gone,  but  the  moral  remains— and 
contract  shall  not  be  enforced,  it  has  no  legal '  while  the  conscience  of  the  obligor  is  not  re- 

_  L  I  ! i_r l__i_       ?.i_  1  11'  A  '  '  ,        1*        I   1 .1         -I-  ^  ~       „ i- ^,,^  A         I*  C.-,      1  ^,j.q]        1  jqVjil  1  flpC 

the  contract, 

and  leaves  the  parties  liable  only  to  the  obliga 
tions  of  good  faith.     Wherever  the  law  with- 


t)bligation,  but  its  moral  obligation  is  not  di-  leased,  his  property  and   his  legal  liabilities 
-minishcd;  indeed  it   is  rather   enhanced,  be-    arc.     The  law  is  withdrawn  from  tin 


cause  the  integrity  of  the  obligor's  conscience 
•is  then  the  only  security  which  the  obligee 
has.  A  contract  prohibited  both  by  the  laws 
•of  God  and  of  man,  has  neither  a  moral  nor  le 
gal  obligc'ition.  Such  Would  be  a  contract  be 
tween  A.  and  B.,  that  if  A.  would  kill  a  par 
ticular  individual,  B.  would  pay  him  $100. — 
•Such  a  contract  would  have  no  moral  obliga 
tion  because  contrary  to  the  moral  law.  It 
"would  have  no  legal  obligation,  because  con 
trary  to  the  civil  law,  and  because  there  is  no 
law  to  enforce  it.  H  is  the  "law,"  therefore, 
that  is  the  essence  of  obligation  in  each  case, 
•moral  and  legal.  It  is  the  law  of  nature  act 
ing  on  the  heart  which  constitutes  the  moral,  it 
is  the  law  of  man  acting  on  man,  that  creates 
the  legal  obligation;  and  any  thing  which  im 
pairs  the  force  or  efficiency  of  the  law  in  either 
•case,  impairs  the  obligation.  If  A.,  for  a  legal 


holds  its  powers  -of  coercion,  there  can  be 
legal  obligation,  there  is  no  obliging  either  par 
ty  by  law.  To  shew  still  further,  what  is  an 
obligation  purely  legal,  what,  (he  asked)  is  the 
the  obligation  by  which  slaves  are  bound  to 
their  masters?  It  cannot  be  moral,  because 
slavery  is  contrary  to  the  laws  of  a  benignant 
heaven.  It  is,  therefore,  purely  a  legal  obliga 
tion;  the  law  of  Kentucky  tolerates  the  domin 
ion  of  man  over  his  fellow  man,  and  authorizes 
the  application  of  force  by  the  master,  to  sub 
jugate,  chastise,  and  imprison  his  Slave.  This 
mere  human  legislation  is  the  only  tenure  by 
which  the  black  man  is  cloven  down.  Repeal 
the  laws  permitting  a  master  to  chastise  or  con 
trol  the  slave  by  force,  or  to  reclaim  him  by 
fore*  or  by  suit,  and  where  then  is  the  obliga- 


ON  THE  COURT  OF  APPEALS. 


6-3 


tion  of  slavery?  It  would  be  destroyed,  and 
universal  emancipation  would  be  the  result. — 
So  when  a  debt  is  barred  by  limitation,  the 
obligor  is  absolved  from  all  legal  liability  or 

°  »i    »i • ,          •         i 


responsibility  in  law,  to  pay  it 

If  when  a  contract  be  made,  the  law  allows 
the  creditor  to  force  the  debtor  in  three  months 
after  judgment,  and  if,  as  has  been  shewn,  this 
right  fo  force  him  by  law,  is  the  legal  obliga 
tion  of  the  contract,  would  not  a  law  verv  ma 
terially  "impair"  that  obligation,  which  should  ; , 
declare  that  the  execution  should  not  issue  for  i "  ^ 


anxious  to  avoid  any  scrutiny  into  the  subject. 
It  was  evident  that  the  convention,  who  were 
wise  men,  meant  something  by  the  use  of  the 
word  obligation.  They  would  not  have  used 


it  as  a  mere  expletive;  supererogation  or  taut 
ology  is  not  attributable  to  them.  They  knew 
what  it  did  mean ,  and  they  knew  too,  that  it  was 
not  the  essence  of  the  contract  itself;  because, 
as  before  stated, "there  may  be  many  contracts 
without  obligation,  legal  or  moral,  'obligation 


is  an  adventitious  quality  attached  to  the  con- 
It  is  not  the  mere  stipulation  or 


ten  years  after  judgment,  or  when  issued 
should  not  coerce  the  debtor  in  less  than  fifty 
years?  If  it  would  not,  then  there  can  be  no 
difference  between  impairing  and  destroying 
an  obligation;  for  if  any  thing  but  total  de 
struction  of  the  legal  obligation  by  withdraw  - 


would 


ing  the  law,  can  impair  it,  such  a  law 
impair  it.     But  there  is  a  difference  between 


agreement  of  the  parties:  first,  because  the 
parties  may  make  stipulations  against  the  nat 
ural  as  well  as  civil  law,  and  then  there  would 
be  no  obligation,  either  moral  or  legal,  attach 
ed  to  them:  they  would  not  possess  this  vital 
principle.  Second,  Because  it  is  not  in  the 
power  of  any  legislature  to  alter  or  impair  the 
terms  or  stipulations  of  the  parties;  these  are 


destroying  and  impairing 


a  local  obligation.-  !  immutable  except  by  the  parties.     The  Lcgis 


A  man's  constitution  may  be  very  much  im 
paired,  his  hold  on  life  may  be  very  much 
weakened — still  life  is  not  destroyed,  still  he 
clings  to  it.  So  the  obligation  of  a  contract 
may  exist  in  a  very  impaired  state,  the  legal 
hold  which  the  creditor  had  oil  the  debtor  when 
he  made  his  contract,  may  be  so  much  impair 
ed  that  it  may  be  of  little  or  no  value,  and  event 
ually  be  lost. 

The  legal  obligation  of  every  contract  is, 
therefore,  THE  RIGHT  OF  THE  CONTRACTING  PAR 
TIES  TO  COKRCE  EACH  OTHER  BY  LAW,  and  thereby 


lature  can  only  change  the  effect  of  the  con 
tract,  not  its  nature.  To  illustrate  this  idea, 
suppose  A.  agrees  to  deliver  to  B.,  on  acertai* 
day,  a  horse  of  a  certain  value  and  descrip 
tion,  can  any  Legislature  convert  this  into  a 
contract  to  pay  money,  or  tobacco,  or  to  deliver 
horses  at  a  different  time  or  of  a  different  value 


parties  have  agreed,  is  the  contract,  and  the 
Legislature  cannot  make  any  other  contract  for 
them.  But  the  Legislature  could,  if  not  in 
terdicted  by  the  constitution,  change  the  ef 
fect  or  the  value  of  the  contract,  and  thereby 


obtain  indemnity;  and  any  thing  which  WEAK-   change  the  legal  obligation,  by  providing  that 
ENS,  POSTPONES,  OR  IMPAIRS  THAT  RIGHT,  necessa-   if  it  were  for  moilcy;it,  might  be  discharged  in 


lily  IMPAIRS   THAT  OBLIGATION. 

Mr.  Robertson  said,  that  it  could  hardly 
be  necessary  to  observe,  that  in  using  the 
word  obligation,  the  Federal  Convention  meant 
the  legal,  and  not  the  moral  obligation.  They 
intended  by  the  prohibition,  to  prevent  some 
sort  of  legislation,  and  this  they  could  not 
have  done  by  denying  to  the  States  the  power 
to  impair  moral  obligation;  because  no  finite 
legislature  has  the  power  or  right  to  abrogate 
or  impair  moral  obligation.  It  derives  its  es- 


tobacco,  or  if  to  be  performed  on  one  day,  the 
obligor  should  not  be  responsible  by  suit  until 
afterwards;  but  still  the  terms  of  the  contract 
would  be  the  same,  and  the  Legislature,  by 
legislating  as  supposed,  would  only  change  the 
legal  obligation  of  the  contract.  That  obliga 
tion  being  the  right  by  law,  to  coerce  the  con 
tract,  must  be  impaired  by  law,  which  enforces 
on  either  party  anything  else  but  the  contract. 
The  Legislature,  by  declaring  that  the  obligor 

,„ 0 _.  .  -   i  shall  have  longer  time  to  comply  with  his  con- 

from  Deity/and  can  only  be  affected  by  tract'than  that  agreed  on,  do  not  thereby  change 

stipulated  by  the  parties;  that  is  still 
;  they  can  only  declare  that,  for  non- 


a  change  in  the  natural  and  moral  code.  Man 
cannot  repeal  the  laws  of  God,  in  all  the  plen 
itude  of  his  power.  No  human  power  can 
ever  hush  the  murmurings  of  conscience,  or 
exempt  man  from  his  moral  obligation  to  do 
right.  But  it  is  not  necessary  to  dilate  further 
on  this  topic,  because  there  is  no  diversity  of 


the  time  sti 
the  same; 

compliance  oii  the  day  "agreed  on,  the  obligor 
shall  not  be  sued  until  a  certain  other  time,  and 
this  impairs  the  legal  obligation,  which  con 
sists  in  the  right  to  sue  and  prosecute  the  suit. 
The  time  for  the  performance  in  the  contract  is 


opinion  in   the   Legislature,  nor  can   there  be   not  the  obligation  of  the  contract;  for  if  the  ob- 
elsewhcre,  when  there  is  any  reflection,  on  this   ligor  comply,  the  contract  cannot  be  enforced: 

_!_•-.!          mi  A'li'  i  •      i   i  •  f> i          -i  ,  -i         ,t  i  jj»n^i    


subject.     The  constitution  was  applied  to  man 
in  society  and  not  in   a  state  of  nature.     The 
Legislature  has  no  right  to  impair  a  legal  obli 
gation:  this  is  the  intent  of  the  constitution. 
He  had,  (he  said)  detained  the  committee, 


f  he  do  not 'comply,  then,  and  not  till  then,  can 
the  obligor  demand  the  interposition  and  aid 
of  the  law,  not  to  compel  performance  on  the 
day  which  is  impossible,  but  to  obtain  repara 
tion  for  non-performance.  If  the  obligation 


and  he  hoped  not  unprofitably,  with  this  short  j  consists  in  the  time  stipulated  in  the  contract 
analysis    of  "obligation,"  for  the   purpose  of  for  performance,  that  obligation  never  could  be 

'  ipaired  by  any  Legislature.     It  w—1  J 
ily  impaired,  but   destroyed  by 


bringing  the  mind  to  some  visible  and  tangible 
point,  some  xiltimate  principle  to  which  he 
might  fasten  those  who  oppose  the  decision  of 
the  court,  and  who  not  only  fail  to  give  any 
tort  of  definition  of  legal  obligation,  but  seemed 


impaired  by  any  Legislature.  It  would  be  not 
only  impaired,  but  destroyed  by  the  obligor 
himself,  and  how  would  any  Legislature  after 
wards  impair  what  was  already  destroyed? — 
No  law  can  compel  a  man  to  perform  on  the 


fi.J 


SPEECH  OF  MR.  ROBERTSON, 


day;  it  is  only  for  failing  to  do  so,  that  the  law 
coerces  or  obliges. 

The  convention  meant  to  prevent  Legisla 
tures  from  depriving  the  parties  to  contracts  of 
some  legal  right  in  relation  to  them,  not  to  pre 
vent  them  from  changing  the  time  or  other 
terms,  which,  without  the  prohibition,  it  would 
be  ridiculous  to  suppose  that  they  could  do. — 
The  only  mode  in  which  the  legal  obligation  of 
a  contract  can  possibly  be  impaired  by  legis 
lation,  is  so  to  change  the  law  for  enforcing 
the  stipulation  of  the  parties,  as  to  render  the 
enforcement  less  certain,  or  efficient,  or  speedy, 
and  thereby  diminish  the  value.  This  may 
be  done,  either  by  postponing  the  right  to  re 
sort  to  the  aid  and  coercion  of  the  law,  or  by 
changing  the  effect  of  its  coercive  power,  by 
depriving  the  creditor  of  his  right  to  compel 
the  thing  for  which  he  contracted  or  its  equiv 
alent.  If  the  Legislature  deny  the  creditor  any 
remedy  for  twenty  years;  or  qualify  it  by  de- 
nying'him  the  right  to  coerce  anything  from 
the  obligor  but  tobacco,  when  he  contracted  for 
money,  the  right  of  using  the  power  of  the  law 
to  enforce  the  contract,  is  certainly  impaired, 
and  as  much  so  in  the  one  case  as  the  other; 
for  if  the  obligation  be  impaired,  by  refusing 
him  the  legal  means  of  coercing  anything  but 
property  when  he  is  entitled  to  money,  it  must 
be  equally  impaired  by  refusing  him  the  right 
to  the  legal  means  of  forcing  the  money  for 
twenty  years,  unless  he  will  take  property, 
when  the  law  under  which  he  contracted  al 
lowed  him  to  coerce  the  money  in  three  months. 
There  is  no  legal  right  when  there  is  no  legal 
power  to  enforce  it.  This  is  self-evident. — 
Blackstone  says,  that  "that  there  is  a  legal  rem 
edy  for  every  legal  right;"  whenever  there  is  a 
right  without  a  remedy,  it  is  not  a  legal  but  a 
moral  right.  Hence  there  is  no  legal  right, 
where  there  is  no  legal  remedy.  'I  he  legal 
right,  therefore,  consists  in  tbc  law  which  gives 
redress,  as  has  been  attempted  to  be  proved,  not 
in  any  purticular  mode  of  coercion,  but  in  the 
right  to  use  the  power  of  legal  agency  to  en 
force  a  just  claim. 

But,  (said  he,)  while  those  who  oppose  these 
doctrines  fail  to  exhibit  any  other,  they  object 
that  they  confound  right  and  remedy,  " Not  so; 
they  are  certainly  mistaken.  The  decision  of 
the  court,  when  examined  fairly,  asserts  noth 
ing  new  on  right  and  remedy.  The  court  only 
decide  this  principle,  that  the  obligation  of  a 
contract  consists  in  the  legal  right  to  enforce 
it,  not  in  the  particular  form  of  coercion.  There 
is  an  obvious  distinction  between  a  right  to 
coerce,  and  the  mode  of  exercising  it.  Where 
the  right  to  use  force  effectually  is  taken 
away,  there  is  no  legal  obligation.  But  as 
long  as  the  right  to  force  is  left  unimpaired, 
it  cannot  be  essential  that  it  should  be  exercis 
ed  in  one  mode  or  another,  provided  either 
will  effect  the  end;  but  no  mode  can  be  s\ib- 
stited  which  will  not  attain  the  end.  Remedy  is 
the  means  prescribed  by  law,  to  employ  the 
force  to  which  an  obligee  is  entitled,  and  may 
at  anytime  be  modified  in  any  manner  so  as 
not  to  defeat  or  postpone  the  end  The  obli- 1 
gation  is  the  right  to  enforce  the  contract;  the  ' 


remedy  is  means  given  to  enforce  it.  In  a 
state  of  nature  the  perfect  moral  obligation  is 
the  right  to  use  individual  force:  the  exertion 
of  that  force  is  the  individual's  remedy.  When 
A  is  entitled  to  $100,  by  contract  with  B.,  the 
legal  obligation  is  A.'s  riglit  to  recover  judg 
ment  against  B.,  and  use  the  power  of  society 
to  enforce  the  judgment.  It  does  not  consist 
in  the  particular  mode  prescribed  for  obtain 
ing  a  judgement,  nor  in  any  particular  mode 
of  execution;  it  is  not  material  to  him,  or  to 
his  legal  right  or  obligation,  whether  he  shall 
enforce  his  contract  in  the  circuit  court,  or  the 
county  court,  or  whether  he  do  it  by  action  of 
debt,  covenant,  or  petition  and  summons,  so 
that  the  right  and  power  of  coercion  are  not 
destroyed  or  impaired.  It  would  be  destroyed 
by  refusing  a  remedy,  because  then  there 
would  be  no  right  to  coerce  it;  it  would  be  im 
paired  by  so  modifying  the  remedy  as  to  ren 
der  the  end  less  certain  or  the  right  less  valu 
able,  or  the  exertion  of  legal  force  less  effectu 
al.  The  obligation  and  the  ^remedy  are  not 
precisely  the  same  therefore.  There  is  a  rad 
ical  difference  between  them,  as  before  stated. 
There  can  be  no  legal  obligation  where  there  is 
no  legal  remedy;  but  the  moral  obligation  and 
moral  right  remain  the  same,  with  or  without 
the  remedy.  Ivight  is  a  compound,  generally. 
Its  ingredients  are  moral  and  legal.  The  lat 
ter  is  gone  when  the  remedy  is  destroyed,  but 
the  former  still  remains,  and  therefore  it  is 
said,  and  correctly,  too,  that  there  is  a  differ 
ence  between  the  gross  right  and  the  remedy; 
that  although  there  be  no  remedy,  there  is  a 
right.  The  obligee  has  a  right  to  his  debt  bar 
red  by  limitation,  but  it  is  only  a  moral  right. 
There  is  ulso  a  difference  between  legal  right 
and  remedy,  if  the  latter  be  xinderstood  to. 
mean  only  the  mode  of  proceeding;  for  a 
change  of  mode  will  not  destroy,  although  it 
may  impair  the  legal  right.  But  if  remedy  be 
understood  to  be  the  exertion  of  legal  force  to 
effect  right,  and  not  the  particular  "MODUS 
AGENDI"  of  that  force,  then  between  this  sort 
of  remedy  and  legal  right  there  is  no  possible 
difference;  because  where  there  is  no  legal  rem 
edy,  there  is  no  legal,  but  only  a  moral  right. 
The  obligation  of  a  contract  is,  therefore,  de 
stroyed  by  taking  away  all  remedy;  it  is  im 
paired,  by  so  changing"  the  remedy  as  toren- 
deritless  efficient,  or  speedy,  or  certfiin,  or 
valuable.  While  the  right  is  conceded  to  the 
Legislature  to  change  the  mode  of  action  or 
execution,  it  is  insisted  on,  as  a  clear  proposi 
tion,  that  they  cannot  do  it,  so  as  to  "impair 
fhe  obligation  of  contracts."  If  they  can  do 
t  constitutionally,  in  such  a  manner  as  to 
postpone  the  collection  fifteen  months  linger 
han  the  time  beyond  which  it  could  not  have 
aeon  delayed  by  law  when  the  contract  was 
nade,  they  would  have  the  power  to  postpone 
t  fifty  years;  for  if  the  power  to  postpone  ex- 
st  at  all,  it  is  only  limited  by  discretion  and 
expediency.  And  if  the  Legislature  have  the 
power  of  postponing  it,  they  would  have  the 
right  to  deny  it  altogether.  And  if  they  have 
these  powers,  the  clause  in  the  constitution 
prohibiting  Stales  from  impairing  contracts, 


THE  COURT  OF  APPEALS. 


i*nugalorj  and  cannot  poiiibly  ever  be  riola-  the  consent  of  the  plaintiff.    For  the  purpose 
feed. 

Suppose  A.  lend  B.  $10,000  in  specie,  on  the 
faith  of  the  act  passed  last  session,  declaring 
that  such  debts  shall  not  be  replevyable  more 


of  shewing  that  the  court  had  not  reversed 
any  of  their  former  opinions  in  relation  to 
right  and  remedy,  (he  said)  he  would  refer  to 
the  case  most  relied  on  in  1st  Bibb's  reports, 
5G1-9.  The  court  in  that  case  decide  that  the 


than  three  months,  and  suppose,  shortly  after 
the  loan,  the  Legislature  p.i*s  a  law  allowing  j  act  allowing  a  petition  and  summons  to  be 
B.  to  replevy  ten  years  unless  A.  will  take  hor-  brought  on  a  bond  for  money  executed  before 
ses  and  cattle — who  would  say  that  such  a  law  the  act  passed,  is  not  unconstitutional.  They 


rould  be  constitutional?     Not  one  man. 
Here  nothing  is  done  but  to  change  the  rcm- 


say  that  "it   is  the  mode    of    recovery    only 
which  is  changed."     And  who  but  the  merest 


edy.  But  it  is  so  changed  as  to  impair  the  le-  tyro  in  the  art  of  reasoning,  would  ever  havu 
gal  obligation.  If  the  change  had  only  been,  i  thought  that  such  a  Taw,  only  changing  tho 
that  a  petition  and  summons  might  be  sued  mode  of  action  without  affecting  the  end, 
out  instead  of  debt,  <fcc.,  the  obligation  would  could  be  an  impairing  of  the  obligation  of  tho 
not  be  impaired;  the  force  which  A.  Ivad  a  right !  contract?  This  is  the  principle  'settled  in  all 
to  use  to  coerce  the  contract,  would  not  be  di-  the  cases.  But  when  did  that  court,  or  any 

other,  ever  decide,  that  if  the  remedy  be  taken 
away,  the  legal  obligation  remains?  Or  if  it 
be  so  altered  as  materially  to  postpone  the 
right  of  coercion,  which  is  the  essence  of  the 
obligation,  that  the  obligation  is  not  impaired? 
No  such  case  can  be  found  in  any  book  of  re 
ports. 

It  was  almost  self-evident,  (he  said)  that  if 
there  were  no  legal  remedy  there  can  be  no  le 
gal  right.  He  did  not  know  any  one  who 
would  deny  it.  It  would  be  seen  that  the  pre- 


minished  or  postponed.  The  legal  obligation 
of  the  contract  would  be  A.'s  right  by  law  to 
force  the  specie  out  of  B.  at  the  expiration  of 
three  months.  Any  aet  which  would  not  allow 
a  coercion  of  specie,  would  certainly  impair 
that  obligation,  and  as  certainly  would  it  be 
impaired  by  not  permitting  the  coercion  of  the 
specie  in  less  than  two  years 

Suppose,  (said  he)  Mr.  Chairman,  you  have 
the  right  to  go  to  Lexington  to-morrow,  it  could 


to  g 

materially  affect  the  right,  to  travel  in 
carriage,  on  horse,  or  on  foot,  so  that  in  either 
mode  you  may  arrive  at  your  destination  dur 
ing  the  day.  But  suppose  that  you  were  com 
pelled  to  go  in  a  loaded  waggon,  which  could 
not  arrive  until  the  next  day,  or  were  compell 
ed  to  goby  way  of  Cincinnati,  in  consequence 
of  which  you  could  not  arrive  in  Lexington  in 
less  than  two  weeks.  These  would  all  b 


amble  did  not  controvert  it. 
how  those  who   made  this 


He  did  not  know 
concession  could 


escape  the  conclusion,  that  to  destroy  the  rem 
edy  would  annihilate  the  legal  right,  and  leava 
it  a  mere  moral  right — and  that  consequently, 
to  postpone,  or  suspend  the  legal  remedy, 
would  impair  the  legal  obligation. 

.No  one  who  understands  the    subject  con- 


ly  different  ,modes  of  conveyance,  but  would  j  tends  that  the  obligation  of  a  contract  consists 


there  not  be  a  great  difference  in  their  effects? 
The  first  modes  would  not  postpone  or  impair 


the  kind  of  remedy;  but  in  the  right  to  have 
reined v,  or  in  other  words,  to  have  some 


the  right;  the  last  would.  So,  if  when  a  con-  legal  means  of  enforcement.  Those  means 
tract  is  made,  the  obligee  has  the  right  to  co-  i  can  be  modified  or  altered,  so  long  as  the 
erce  the  obligor  within  three-months,  and  the  \  change  does  not  impair  the  right  to  coerce. — 
nature  of  the  remedy  be  so  changed  that  he  i  Now,  if  to  abrogate  all  remedy  would  de- 
shall  not  be  permitted  to  do  it  in  less  than  two  I  stroy,  would  not  a  suspension,  postponement, 
years,  the  right  would  be  affected  or  impaired:  \  or  diminution  of  its  power  or  efficiency,  im- 


that  is,  the  right  to  use  coercion,  which  is  the 
obligation.  But  if  the  mode  of  suit  only  be 
changed,  so  that  the  right  to  enforce  the  con 
tract  is  not  delayed  or  impaired,  the  obligation 
is  not  affected.  The  difference  is  in  the  mode 
and  the  end  of  the  remedy.  The  mode  is  im 
material  so  long  as  the  end  is  attained.  It  is 
not  important  to  A.  by  what  means  the  law 


pair  it?     Undoubtedly. 

The  abolition  of  the  ca  sa,  as  it  diminished 
or  circumscribed  the  legal  right  of  the  creditor 
to  coerce  the  debtor,  would  have  impaired  the 
oblibation,  if  no  other  means  had  been  substi 
tuted  which  are  as  efficient.  But  the  legisla 
ture  have  substituted  for  the  right  to  act  on 
the  person  the  right  of  acting  on  equities, 


shall  compel  B.  to  pay  his  money,  provided  it  j  which  is  not  only  as  efficacious,  but  more  -so. 
forces  him  to  pay  specie  and  within  the  time  I  They  did  not  therefore,  by  this  modification  of 
within  which  it  is  pledged  to  do  it.  And  this  |  the  remedy,  impair  the  obligation,  any  more 
has  always  been  the  doctrine  of  the  court  of  j  than  they  did  by  giving  a  petition  anil  sura- 
appeals,  and  nothing  else  can  be  made  out  of  j  rnons  instead  of  an  action  of  debt. 


the  cases  cited  in  the  preamble  to  the  resolu 
tions.  They  there  decided  that  the  mode  of 
remedy  could  be  changed  without  impairing 
the  right.  So  they  say  yet.  But  they  never 
decided,  nor  ever  "can,  that  a  retrospective  act, 
taking  away  all  remedy,  or  suspending  or  post 
poning  it  for  the  purpose  of  delay,  is  constitu 
tional.  Remedy  is  given  to  the  plaintiff  for 
his  benefit,  but  an  extension  of  replevin  for  the 
purpose  of  delay,  is  not  giving  the  plaintiff 
remedy;  it  is  giving  the  defendant  relict  against 
9 


It  was  the  duty  of  the  convention  to  insert 
such  provisions  in  the  Federal  Constitution, 
as  would  secure  the  union  of  the  states,  the 
great  end  of  the  Constitution.  Nothing  they 
knew  c-uld  more  certainly  effectuate  this  ob 
ject  than  to  prevent  collision  of  interests  or  of 
feeling  as  far  as  possible  among  the  citizens  of 
the  different  states.  They  knew  from  "expe 
rience"  that  if  one  state  would  suspend  tho 
collection  of  debts,  others  would  retaliate, 
andthat  thereby  irritation  and  alienation  would 


SPEECH  OF  MR.  ROBERTSON, 


be  produced.  They  therefore  determined  to 
avert  sucli  distracting  legislation,  by  denying 
the  power  to  the  states;  and  the  states,  having 


might  abolish  all  remedy,  'and  leave  the  cred 
itor  in  a  worse  condition  than  he  would  be  in, 
in  a  state  ot  nature,  if  the  obligation  of  the 


surrendered  it,  cannot  complain  now  that  they  contract  do  not  consist  in  the  right  to  use  the 
cannot  exercise  it.  It  was  yielded  upon  the  I  agency  of  law  to  enforce  the  contract,  and  if 
altar  of  the  general  good — the  union;  and  it  is  j  impairing  or  postponing  the  action  of  that  agen- 
the  interest  of  all  the  states  that  none  should  I  cy  be  not  impairing  the  obligation.  Such  a 
have  this  power.  How  would  Kentucky  feel,  construction  of  the  constitution  would  render 


if  after  her  citizens  should  sell  on  a  credit 
their  produce,  to  a  great  amount,  to  the  people 
of  New  Orleans  on  the  faith  of  a  law  in  Lou 
isiana  wheu  the  contracts  were  made,  enabling 
the  sellers  to  coerce  payment  within  three 
months,  the  legislature  of  Louisiana  should 
pass  a  law,  for  the  avowed  purpose  of  affecting 
the  Kentucky  creditors,  that  no  debt  should 
"be  coerced  in  less  than  five  years.  This  might, 


it  ridiculous. 

He  thought,  h«>  said,  that  he  had  succeeded 
in  showing  that  the  legal  obligation  of  a  con 
tract  consisted  in  the  right  which  the  obligee 
has  by  law  to  force  the  obligor  to  make  him  rep 
aration  for  non-compliance  with  his  engage 
ments,  and  not  in  the  mode  of  exerting  that 
force:  that  any  law  destroys  this  legal  right  or 
Qbligation  which  abrogates  all  means  of  using 


and  probably  would  ruin  the  Kentucky  credit-  this  force,  and  that  any  law  which  impairs  the 
ors;  and  would  the  people  of  Kentucky  be  sat-  force,  postpones  its  exertion,  or  affects,  the 
isfied?  Would  they  not  pronounce  such  an }  right  to  wield  it,  impairs  the  obligation.  And 
act  a  flagrant  violation  of  the  Federal  Constitu-  >  he  trusted  that  he  had  shown  that  these  doc* 
tion?  Would  they  not  insist  that  the  clause,  j  trines  were  in  perfect  consonance  with  all  ths 
which  has  been  the  subject  of  debate,  was  in- 1  decisions,  in  relation  to  right  and  remedy,  and 
serted  to  prevent  such  unjust  interference? — j  the  power  of  the  legislature  to  regulate  and 
They  certainly  would,  and  justly;  for  if  such  modify  the  remedial  system, 
legislation  be  not  interdicted,  it  can 


it  can  avail  noth-       The  conclusion,  he  thought,  must  be  felt  as 


ing  to  prohibit  any  other  interference  in  pri-  strong,  plain  and  difficult  to  escape,  that  a  re- 
vate  contracts,  because  the  unjust  end  can  al-  trospective  law,  suspending  or  postponing  the 
ways  be  effected  in  this  mode.  The  convention  j  right  of  legal  coercion,  is  in  direct  violation  of 
did  not  intend  that  their  object  should  be  thus  j  that  clause  in  the  Federal  Constitution  which 
defeated  and  their  provisions  eluded.  '1  hey  j  has  been  mentioned,. and  also  repugnant  to  the 
did  not  intend  that  their  provision  should  be  clause  in  the  Kentucky  constitution  on  tho 
a  blank.  They  intended  it  to  have  some  prac-  same  subject.  One  interdicted  any  law  "im- 
tical  effect.  pairing  the  obligation  of  contracts:"  the  other. 

Suppose  after  a  debtor  has  replevied  two  "any  law  impairing  contracts."  It  would  be 
years,  you  pass  an  act  authorizing  another  re-  difficult  to  shew  how  a  law  could  impair  a 
plevin  of  two  years  longer,  would  it  be  consti- ,  contract  without  impairing  the  obligation  of  a 
tutional?  No!  But  if  it  were  constitutional  |  contract.  He  would  leave  it  to  those  skilled  in 
to  extend  the  three  months  to  two  years,  it !  dialects  and  casuistry  to  shew  how  it  could  be 
must  be  so  to  extend  two  to  four,  and  so  on  ad  \  done;  he  expected  never  to  hear  the  solution. 
infinitum,  so  that  the  creditor  would  never  get  j  But  however  that  may  be,  it  is  sufficient  that 


his  debt. 

Many  members  of  each  denomination  in  this 


the  Federal  Constitution  has  been  violated:  and 
if  it  was  not  violated   it   never  will  or  can  be. 

legislature,  seem  desirous  to  pass  a  law  to  re- 1  He  had  demanded  of  those  who  denounce  the 
duce  the  replevin  to  three  months,  on  all  con-!  opinion  of  the  court  (and  he  would  now  reite- 
tracts  which  shall  be  made  after  the  1st  of  May  j  rate  that  request)  to  imagine  any  legislation 
next.  Suppose  the  law  passed,  and  contracts]  which  will  come  within  the  scope  of  the  pro- 
made  on  the  faith  of  it,  could  the  next  legisla-  j  hibition,  if  the  two  years  replevin  in  its  rctro- 
turc  extend  the  time  of  replevin  to  two  years,  I  active  operation  does  not?  Such  a  case  had 
so  as  to  operate  on  such  contracts?  If  you  |  not  been  stated.,  and  he  did  not  believe  that  it 


could,  why  pledge  yourselves  by  declaring  that 
on  all  contracts  to  £>e  made  after  the  1st  of  May, 
there  shall  be  a  replevin  of  only  three  months? 


could  be. 

The  constitution  certainly  means  something: 
what  then  does  it  mean?  If,  said  he,  we  con 
sult  cotemporaneous  construction,  the  opinions 
of  those  who  made  the  constitution,  the  ac- 


lt  would  only  delude. 

Suppose  A.  trust  B.  for  a  large  sum,  on  the 

credit  of  a  large  estate  belonging  to  B.,  which  I  knowledged  object  of  the  provision  in  relation 
at  the  time  is  liable  to  the  payment  of  the  debt  to  the  obligation  of  contracts,  and  the  decisions 
by  law;  would  not  asubsequent  enactment  ex-  of  the  Federal  Court,  and  every  other  court  that 
empting  all  B.'s  property  from  execution,  be-  ever  has  adjudicated  on  it,  we*  shall  find  all  in 
fore  A.'s  d^bt  be  paid,  very  much  impair  the  harmony  and  establishing  the  very  principle 
obligation  of  the  contract?  No  one  can  con- 1  contended  for  in  this  argument;  and  should  not 
trovertit.  But  if  the  obligation  consist  in  the  this  be  sufficient  to  still  even  a  lingering  doubt? 
terms  of  the  contract,  or  the  time  stipulated  for  VV  hat  principle  can  present  a  stronger  mass  of 
the  performance,  such  an  act  would  not  impair  intrinsic  argument,  or  a  larger  column  of  au- 
it,  nor  would  any  other  which  only  deprives  j  thority  in  its  support?  This  mirst  (he  humbly 
the  creditor  of  the  legal  means  of  collecting  his  thought)  be  unanswerable.  Let  him  only  who 
debt!  This  would  be  the  inevitable  conse-  is  lost  in  the  mist  of  Phyrronisrn  doubt  longer, 
quenceof  any  other  doctrine  than  that  contend-  To  such  an  one  reason  is  lost,  and  t&  hirn  it 
sd  for  in  the  argument:  and  hence  a  legislature  would  be  unnecessary  to  exhibit  th«  addition- 


T  THE  COURT  OF  APP^A'S. 


authority  of  all  writers  on  natural   and  po- 1  ison  was  not  prophetic;  it  was  the  language  of 
" 


litical  law  "in  confirmation  of  the  definition  giv- 
•en  of  legal  obligation. 

While  the   Federal   Constitution  was  in  a 
itate  of  probation  before  the  American  people, 
for  their  adoption,  Mr.  Hamilton  and  Mr.  Mad 
ison,  who  were  vcrv  distinguished  members  of 
the  Convention,  and  Mr.  .;ay,  afterwards  Chief 
Justice  of  the  United  -States,  published   a  se- 
Ties  of  numbers  signed  "ii'Buus,"  developing 
the  principles  and  objects  of  the  constitution; 
and  answering  objections  to  it.     These  num- 
'bers  were  then,  and  arc  still  considered  the  best 
exposition  of  the  constitution   that  ever  was 
-published,  and  are  now  appealed  to  as  the  text 
book.    In  the  seventh  number,  Mr.  Hamilton, 
in  speaking  of  the  causes  of  collision  among 
the  states  under  the  confederation,  says:  "We 
have  observed  the  disposition  to  retaliation  ex 
cited  in  Connecticut,  in  conseqence  of  enormi 
ties  perpetrated  by  the  legislature  of  Rhode  Is 
land;  and  may  we  not  reasonably  infer  that  in 
Bimilar  cases,   under  other  circumstances,  a 
war,  not  of  parchment  but  of  the  sword,  would 
chastise  such  atrocious  breaches  of  moral  ob 
ligation  and  social  justice?"     He  here  alluded 
to  a  law  of  Rhode  Island,  which  (the  people 
being  very  much  indebted  to  Connecticut)  pro 
vided  that  debts  should  not  be  collected  for  two 
years,  unless  the  creditors  would  take  a  dcprc 
ciated  papei  money.     This  provoked  a  retalia 
tory  law  in  Connecticut,  which  prohibited  tin 
citizens  of   Rhode  Island  from    suing  in  tin 
courts  of  the  former  state,  which  produced  a 
very  angry  contest  between  the  two  states. — 
And  this   is  stated  by  Hamilton  to  have  beer 
one  reason  for  that  clause  in  the  constitution 
which  prohibits  laws  impairing  the  obligatioi 
of  contracts;  to  prevent  the  recurrence  of  sim 
ilar    legislative  interferences   between   debto 
and   creditor,   was  the  principal  object.     Mi 
Madison,  in  commenting  on  the  same  clause  i 
the  47th  number,  after  shewing  that  the  objcc 
of  the  convention  in  adopting  the  clause,  wa 
the  same  as  stated  by  Hamilton,  and  that  ex 
perience  had  shown  the  necessity  of  interdict 
ing  the  legislatures  of  the  states  from  passin 
laws  impairing  the  obligation  of  contracts,  ob 
serves:  "The  sober  people  of  America  are  wear 
of  the   fluctuating  policy  which  has  directec 
the  public  councils.     They  have  seen,  with  re 
gret  and  indignation,  that  sudden  change  and 
legislative  interferences  in  cases  affecting  per- 


xpenence,  and  actual  observation.  He  d«- 
cribcs  exactly  such  legislation  as  that  of  Kcn- 
ucky,  mentions  its  deleterious  effects,  and 
hews  that  the  object  of  the  people  was  to  be 
orevcr  afterwards  exempt  from  its  affliction?, 
y  the  insertion  of  the  clause  in  the  Federal 
Constitution  which  has  been  mentioned.  He 
ays,  too,  that  experience  had  shewn  the  neces- 
iiy  of  preventing  the  passage  of  laws  impair- 
ng  the  obligation  of  contracts.  He  here  al- 
udcs  to  the  legislation  of  the  states  from  1782  to 
788,  when  the  convention  assembled.  Thia 
egislation  impaired  the  obligation  of  contracts: 
ct  this  not  be  forgotten,  and  it  will  settle  all 
lispute. 

The  only  object,  he  says,  for  inserting  in  tho. 
onstitution  the  clause  in  relation  to  the  obli 
gation  of  contracts,  was  to  prevent  the  sarao 
sort  of  legislation  in  future.  \Vhat  was  thia 
egislation?  It  consisted  of  suspension  laws, 
•etrospectiv^  replevin  laws,  and  laws  indircct- 
y  to  force  the  creditor  to  take  depreciated  pa- 
oer,  by  compelling  him  to  wait  a  long  time  for 
iis  debt,  if  he  would  not  take  it.  This  Mr. 
Madison  characterizes  as  ruinous  legislation, 
which  impairs  the  'obligation  of  contracts,'  and 


sonal  rights,  become  jobs  in  the  hands  of  the 
more  enterprising  and  influential  speculators, 
and  snares  to  the  more  industrious  and  less  in 
formed  part  of  the  community.  They  have 
eccn,  too,  that  one  legislative  interference  is 
but  the  link  of  a  longchain  of  repetitions;  ev 
ery  subsequent  interference  being  naturally 
produced  by  the  effects  of  the  preceding.  They 
Very  righfully  infer,  therefore,  that  some  thor 
ough  reform  is  necessary,  which  will  banish 
speculation  on  public  measures,  inspire  pru 
dence  and  industry,  and  give  a  regular  course 
to  the  business  of  society."  How  completely 
do  the  sentiments  here  expressed,  apply  to  the 
condition  of  Kentucky  and  to  her  legislation  for 
-•several  year*!  13ut  the  language  t-f  Mr.Mad- 


iht-refore  the  words"''obliga';ions  of  contracts" 
were  inserted  in  the  constitution,  as  most  ap 
propriate  to  the  object  of  preventing  its  re 
currence.  The  conclusion  is  irresistible,  that 
if  the  legislation  of  the  states  before  1788,  im 
paired  the  obligation  of  contracts,  the  two 
years'  replevin  law  of  Kentucky  must  also 
impair  it.  There  is  no  difference.  Who  can 
discriminate  any?  And  what  Messrs.  Hamilton 
and  Madison  wrote  on  this  subject  was  never 
contradicted.  On  the  faith  of  it,  the  different 
states  ratified  the  constitution,  and  therefore) 
must  have  given  the  same  construction  to  that 
clause,  and  have  been  satisfied  with  it.  What 
better  evidence  of  what  was  intended  by  the 
clause  could  be  required  or  given,  than  tho 
opinions  of  those  who  inserted  it,  and  of  thoso 
who  afterwards  ratified  it?  They  meant  what 
the  court  has  decided,  and  whatever  they  in 
tended  to  do  is  done. 

But  a  further  aiid  stronger  testimony  in  be 
half  of  the  same  construction  is  furnished  by 
Luther  Martin,  a  distinguished  member  of  the 
convention,  who,  in  his  apology  to  his  constit 
uents,  for  voting  against  the  constitution, 
stated,  as  the  reason,  that  he  was  unwilling 
that  the  states  should  surrender  the  power  &i 
interfering  for  the  relief  of  debtors,  and  said 
that  all  interference  is  prohibited  by  the  clause 
in  question.  Could  he  have  been  deceived? 
Could  his  constituents  have  been-  deceived? 
Such  was  his  opinion  and  theirs',  of  the  effect 
and  object  of  the  clause. 

If,  said  Mr.  Robertson,  any  further  evidence 
could  be  necessary  to  show  what  Mr.  Madison 
meant,  in  what  has  been  quoted  from  him,  and 
what  those  who  adopted  the  constitution  in 
tended,  it  can  be  abuudantl}r  furnished  by  a 
recurrence  to  the  history  of  .the  United  States, 
immediately  preceding  the  ratification  of  th« 
states;  and  here  will  be  seen,  in  striking  col 
ors,  what  ftsrt  of  legislation  theiconvention  in- 


SPEECH  OF  MR.  ROBERTS  )X, 


tended  to  prerent  Ramsay  Bays,  in  the  third  be  wrong,  then  those  who  formed  the  constitn- 
volumc,  77th  page,  of  his  history  of  the  United  1 1  ion  and  those  who  ratified  it,  did  not  know 
States — "State  legislatures,  in  too  many  in- j  what  they  were  doing,  and  failed  to  do  what 
stances,  yielded  to  the  necessities  of  their  con-  j  every  candid  and  well  inforfhed  man  will  ac- 
stituents,  and  passed  laws,  by  which  the  cred-  knowledge,  they  intended  to  do.  The  histo- 
itors  were  either  compelled  to  wrait  for  pay-  rians  of  the  times  were  wrong,  and  the  court* 
nient,  or  to  take  property  at  a  valuation,  or  pa-  •  have  all  been  wrong.  This  is  strong  and  bold 
per  money,  <fcc."  i  ground,  especially  for  those  who  do  not  offer 

To  prevent  similar  legislation,  this  clause  of  any  substitute  for  the  principle  settled  br  th« 
the  constitution  was  adopted;  and  is  not  the  court.  The  court  is  right,  and  their  opinion 
two  years'  replevin  act  a  precise  parallel  of  the  will  never  be  reversed. 

legislation  mentioned  by  Ramsay?  And  still'  Retrospective  laws,  even  when  not  prohibit- 
it  is  contended  that  the  constitution  does  not'ed  by  the  constitution,  are  unjust  and  impoli- 
apply  toil!  Marshall,  in  his  life  of  Washing- 1  tic;  and  the  most  absolute  despot  in  an  en- 
ton,  page  85,  after  stating  that  two  great  par-  j  lightened  age  and  civilized  community,  rarely, 
ties  grew  out  of  the  efforts  for  relief,  shortly  af-  j  if  ever,  ventures  to  punish  his  subjects  by  "ex 
ter  the  revolution,  says  that  the  result  of  their  \post  facto"  laws,  or  to  divest  them  of  vested 
various  and  bitter  contests,  were  relief,  delay  i  rights,  by  retroactive  ordinances.  If  the  leg- 
and  suspension  laws,  which  produced  great  j  islature  have  the  power  to  divest  a  vested  right 
embarrassment,  by  the  instability  of  the  public  j  to  property  >  they  must  have  the  power  to  pun- 
counsels,  and  wTant  of  confidence  in  the  gov-lish  a  citizen  by  an  ex  post  facto  law;  a  law 
ernment  and  individuals,  still  further  says — j  which  declares  that  to  be  illegal  which  was  le- 
"The  hope  and  fear  still  remained,  that  the!  gal,  criminal  which  was  innocent,  when  it  was 
debtor  party  would  obtain  the  victory  at  the 'done. 

elections;  and  instead  of  making  the  painful  j '  It  is  of  the  essence  of  constitutional  legislu- 
effortto  obtain  relief  by  industry  and  economy,  tion,  that  so  far  as  it  can  affect  vested  rights, 
many  rested  all  their  hopes  on  legislative  in-  it  shall  be  prospective  in  its  operation.  Men 
terference.  The  mass  of  national  labor  and  !  enter  into  society  for  the  purpose  of  having  se- 
wealth  was  consequently  diminished.  In  every  cured  to  them,  invariably  and  certainly,  those 
quarter  were  found  those  who  asserted  that  it  rights  to  which  they  become  entitled,  by  con- 
was  "impossible  for  the  people  to  pay  their  j  tract,  or  otherwise.  The  only  legitimate  ob- 
debts,  and  in  some  instances  threats  were  used  !  ject  of  legislation  is  to  enforce  the  rights  of  in- 
for  suspending  the  administration  of  justice,  dividuals — not  destroy  them.  What  would  bo 
<fcc."  This  language  is  Very  explicit  and  ap-  said  of  a  law,  which,  on  its  face,  should  dc- 
posite;  nothing  can  be  more  true;  it  is  verified  jelare  that  it  should  be  in  force  from  and  after 
by  Kentucky.  Those  who  formed  the  federal  ten  years  before  its  passage?  Was  such  a  pro- 

*'.•,..  11  •  ^1     *  1    *    .  _i  '  *  1  _  *J  T)-_J-       it 


constitution  had  experience  ^  on  this  subject, 
which  the  people  of  Kentucky  Avill  ere  long 
have,  and  resolved  to  prevent  the  evils  depict 
ed  by  the  historian,  from  ever  being  produced 
in  the  United  States,  after  the  adoption  of  the 
constitution.  Is  not  the  extract  just  read,  a 
faithful  history  of  Kentucky,  at  this  time? 
And  can  it  be  pretended  that  the  constitution, 
which  intended  to  guard  against  the  evils  so 
well  portrayed,  does  not  apply  to  them? 

But  these  evidences  are  well  fortified  by  ju 
dicial  decisions.  Since  the  late  war,  North 
Carolina  passed  a  retrospective  replevin  law. 
Its  courts  declared  it  to  be  in  violation  of  that 
clause  in  the  federal  constitution,  which  pro 
hibits  laws  impairing  the  obligation  of  con 
tracts,  and  the  people  acquiesced.  Missouri 
passed  a  similar  law,  and  the  courts  there 
gave  a  similar  decision,  which  public  senti 
ment  sustained.  In  Tennessee  was  a  similar 
law,  and  a  similar  decision.  Chief  Justice  Jay 
presiding  in  the  federal  circuit  court  of  Rhode 
Island,  shortly  after  the  adoption  of  the  con 
stitution,  decided  that  a  similar  law  in  that 
state  was  unconstintional.  This  decision  was 
never  reversed.  Every  court  in  the  United 


vision  ever  seen  in  any  law?  ,  But  the  two 
years'  replevin  act  is  intended  in  effect,  to  bo 
in  force,  to  operate  on  rights  which  may  have 
been  vested  by  law  more  than  twenty  years 
before  its  passage.  By  the  constitution,  the 
parties  to  contracts  are  to  be  entitled  to  the  legal 
rights,  when  their  contracts  are  to  be  enforced  to 
which  they  were  entitled  when  they  were  made. 

He  would,  said  lie,  conclude  this  part  of  his 
argument,  by  propounding  three  simple  ques 
tions  to  those  who  are  opposed  to  the  view 
which  he  had  taken  of  the  subject:  1st.  If  tho 
legal  obligation  of  the  contract  is  not  the  right 
of  the  obligee  to  enforce  it  by  the  power  of  the 
law,  what  is  it?  2nd.  If^a  retrospective  re 
plevin  of  two  years  will  not  impair  that  legal 
obligation,  what  will  impair  it?  3rd.  If  the 
legislature  can  constitutionally  pass  such  an 
act,  what  can  they  not  pass  without  violating 
the  constitution?  It  is  the  duty  of  every  one 
to  answer  these  questions  explicitly  and  sat 
isfactorily,  before  he  arraigns  the  decision  of 
the  court.  Let  him  answer  thus,  who  can. 

He  would  next,  and  lastly,  he  observed, 
proceed  to  answer  arguments  used  against  th'e 
decision  of  the  court — and  this  he  would  do  by 


States,  which  has  decided  the  question,  has!  a  cursory  review  of  the  preamble  to  the  resolu- 
given  the  same  decision,  as  far  as  there  is  any  tions.  That  contained  all  that  had  ever 
information  on  the  subject,  and  it  is  not  proba-  been  thought  of  on  that  side  before,  and  a  great 
ble  that  any  court  will  ever  give  a  different  one.  deal  more.  He  should  not,  be  able  to  examine 
Is  it  then  fair,  or  just,  or  prudent,  to  assert  so  lit  as  much  in  detail  as  he  desired,  and  had  iri- 
dogmatically  as  some  have  done,  that  the  court  J  tended;  he  found  himself  too  much  exhausted, 
of  Kentucky  has  decided  vrong?  If  the  corurt  after  having  tpoken  thre«  hours,  to  occupy  th« 


ON  THE  COURT  OF  APPEALS. 


rnucn  longer.  H«  would  therefore  hasten 
to  a  conclusion  of  his  argument,  after  a  short 
examination  of  the  preamble;  and  in  reviewing 
it  he  had  expected  to  justify  what  he  had  al 
ready  said  in  characterising  it. 

In  page  3rd,  as  printed  in  the  journal,  the 
author  says,  "The  obligation  which  is  denom 
inated  legal,  results  from,  and  is  imposed  by 
the  laws  of  society.  But  the  laws  of  civil  so 
ciety  are  but  declaratory  of  the  laws  of  nature; 
therefore,  the  obligation  which  results  from 
tiie  laws  of  nature,  results,  also  from  the  laws 
of  civil  society.  When  considered  as  resulting 
from  the  former,  it  is  binding  only  in  con- 
ecience,  and  is  denominated  a  MORAL  obliga 
tion;  but  when  considered  as  resulting  from 
the  latter,  it  is  denominated  a  LEGAL  obligation, 
and  is  externally  binding." 

After  using  this  language,  could  it  have 
been  imagined  that  the  author  could  resist  the 
doctrine  that  the  legal  obligation  of  a  contract 
•consists  in  the  law  and  its  binding  efficacy? 
He  says  that  legal  obligation  is  that  which  "re 
sults  Irom,  and  is  imposed  by  the  laws  of  civil 
liberty,"  and  is  "externally  binding."  How 
docs  it  "result  from  the  laws,"  when  there  is 
no  -law  recognizing  it  or  enforcing  it?  The 
law  must  be  in  operation  or  it  cannot  impose 
the  obligation.  How  is  it  "externally  1 


ing 


if  it  be  not  the  law  which  makes  it  so? 


In  this  extract  is  given  a  very  specific  defini 
tion  of  both  moral  and  legal  obligation,  in 
•which  it  is  admitted  that  moral  obligation 
consists  in  the  binding  force  of  conscience,  and 
legal  obligation  in  the  coercion  of  the  laws,  of 
society.  What  else  has  been  contended  for  in 
this  argument,  or  in  the  opinion  of  the  court? 
And  how  can  the  conclusion  be  avoided,  that 
if  there  bo  no  law  to  coerce,  there  is  no  legal  ob 
ligation,  and  that  if  the  coercion  of  the  law,  or 
tha  right  to  use  it,  be  suspended  or  postponed 
by  the  legislature,  the  legal  obligation  is  im 
paired?  The  author  no  where  extricates  his 
argument  from  this  embarrassing  difficulty, 
-and  it  is  only  fair  to  reiterate,  that  he  has  sus 
tained  the  only  principle  settled  by  the  court. 
But  there  is  an  evident  incongruity  in  the 


sentiments  embodied  in  the  extract .  In  another 
sentence,  moral  and  legal  obligations  are  con 
founded,  for  it  is  asserted  that  the  "obligation 
which  results  from  the  laws  of  nature,  ivsuhs 
also  from  the  laws  of  civil  society."  And  i; 
there  no  moral  obligation,  when  there  is  no  le 
gal  obligation,  and  no  legal,  when  there  is  no 
moral  obligation?  Where  is.  the  legal  obliga 
tion  of  a  contract  which  is  illegal?  It  does  not 
exist,  but  the  moral  obligation  does.  Where 
is  the  moral  obligation  of  a  slave  to  serve  his 
master.  It  does  not  exist:  still  the  law  com 
pels  the  slave  to  be  subject  to  the  dominion  of 
nis  master.  It  was  stated  in  another  part  of 
this  argument,  that  the  definition  given  in  the 
preamble,  in  coincidence  with  that  given  by 
the  court  of  the  legal  obligation  of  a  contract, 
escaped  the  author,  without  design.  The  rea- 
Bon  of  that  statement  is  now  apparent,  for  While 


posed  by  law,  there  is  an  attempt  mad«  to  con 
found  them,  as  has  been  shovn. 

In  page  5,  it  is  contended  that  perfect  moral 
obligation  results  from  the  moral  sense  of  tha 
obligor,  and  not  from  the  obligees's  right  to  use 
coercive  means.  If  this  be  true,  what  difference 
can  there  be  between  moral  obligations,  per 
fect  and  imperfect?  An  imperfect  obligation 
results  from  the  dictates  of  moral  propriety. 
A  perfect  moral  obligation  results  from  eoniC' 
thing  additional,  or  it  would  be  as  imperfect 
as  the  other.  It  is  the  right  to  coerce  by  phys 
ical  force  that  creates  a  moral  obligation  per 
fect.  When  this  right  does  not  exist,  the  obli 
gation  is  reduced  to  imperfect,  but  is  still  an 
bligation,  because  1he  conscience  persuades, 
obliges.  It  cannot  then  be  true  that  the  right 
to  u*e  force  is  no  ingredient  of  a  perfect  obliga 
tion;  it  is  the  very  essence  of  it.  If  the  author 
could  have  succeeded  in  this  delusive  idea,  ho 
would  leave  the  reader  to  infer  (for  he  was 
not  willing  to  state  it  himself )  that  legal  obli 
gation  does  not  result  from  the  right  to  use  le 
gal  force,  although  he  admitted  that  it  does  in 
the  extract  which  has  been  read;  and  that  it 
does,  has  not  only  been  clearly  shown,  but 
would  be  evident  from  this  consideration — that 
if  it  does  not,  then  there  would  be  no  differ 
ence  between  legal  and  moral  obligations, 
whether  perfect  or  imperfect,  boih  depending, 
according  to  the  argument  in  the  preamble,  on 
the  moral  sense. 

In  the  same  page  it  is  asserted,  that  the  right 
to  use  violence  results  from  the  obligation, 
and  is  exerted  to  enforce  if.  It  should  have 
been  recollected,  that  it  is  not  the  obligation 
which  is  enforced,  but  the  contract  or  duty; 
and  that  it  is  the  right  to  enforce  it  which 
creates  the  obligation  —  is  its  very  essence;  it  is 
absurd  therefore*  to  say  that  the  obligation  en 
forces  ihe  obligation.  But  in  the  next  page  the 
fallacy  of  the  argument  is  shown  by  the  au 
thor  himself  in  a  striking  and  ludicrous  man 
ner,  by  some  illustrations  of  the  principle  con 
tended  for  on  which  hang  all  the  conclusions 
of  the  whole  printed  argument.  He  here  asks 
whether  if  B,  a  hunter,  procure  furs  from  C,  a 
trapper,  and  promise  to  return  him  skins  in  ex 
change,  but  fail  to  do  it  according  to  contract, 
does  the  right  of  C  to  exact  reparation  by  force 
constitute  the  obligation  of  the  contract,  or  does 
the  right  to  use  the  violence  result  from  the 
breach  of  the  contract?  And  he  answers  him- 
svlf,  that  the  right  to  force  results  from  the 
breach.  This  is  only  an  exemplification  of  the 
idea  which  has  just  been  attempted  to  be  re 
futed.  The  right  of  C  to  exact  reparation  by 
force  is  the  obligation  which  induces  or  forces 
compliance  by  B,  and  the  object  of  force  is  not 
to  coerce  the  obligation  or  binding,  but  the 
contract  or  its  equivalent.  But  a,  better  an 


swer  to  this  case 


may 


be  found  in  the  case  it 


self.  The  author  here  states,  "the  obligation 
to  pay  them  (that  is  the  skins)  is  of  a  perfect 
sort;"C  has  the  right  to  exact  reparation  by 
force."  The  obligation  it  is  admitted  then  is 
perfect,  because  C  has  a  right  to  force;  if  he 


it  is  admitted  that  there  are  legal  as  well  asmor-  ,had  not  a  right  to  force  it  would  consequently 
«1  obligation!,  and  that  logtl  obligation  is  fm-  ]not  ^  perfwt;  ST1d  th«rrfort  it  is  th«  right  to 


SPEECH  OF  MR   IlOBERTbCTX, 


resort  to  force,  which  alone  constitutes  obliga 
tion  in  the  opinion  of  the  author.  After  hav 
ing  thus  admitted  that  the  right  to  force  consti 
tuted  ihc  obligation,  could  ithavt  been  believed 
that  he  would,  in  the  next  sentence,  endear  or 
to  prove  that  the  obligation  resulted  from  the 
breach  of  the  contract,  and  that  a  violation  of 
the  contract  was  a  violation  of  the  obligation? 
But  it  may  possibly  be  said  that  he  intended 
only  to  say  that  the  right  to  use  force  resulted 
from  the  breach  of  the  contract.  If  he  did  his 
case  proves  nothing,  excet  that  the  riht  to 


•well  regulated  community  hare  the  same  pow 
er?  If  they  have,  they  are  more  absolute  than 
the  Autocrat  of  Russia.  If  they  have  not,  then 
according  to  the  argument  in  the  preamble., 
they  have  only  the  power  of  modifying  the  re 
medial  laws  so  as  not  to  destroy  or  impair  le 
gal  obligation,  which  is  exactly  what  is  urged 
by  the  court.  The  arguments  illustrated  by 
er  and  hunter  are  "obviousl  an 


trappe 

palpably"   fallacious,  and   consequently    the 
great  superstructure  built  on  them  must  fall. 
But  in  page  22,  the  author  hints  that  the  ob- 


forcels  the  essence  of  the  obligation,  as  by  the  ligation  of  a  contract  consists  in  the  time  given 
court  decided;    for  conceding  that  the  use  of  by  its  terms  for  performance!    Nothing  is  mora 


force  is  consequential  to  the  breach,  does  not 
prove  that  the  right  to  use  force  is  not  the  ob 
ligation.  The  right  to  force  is  the  obligation; 
the  exertion  of  force  is  only  the  enforcement  of 
the  right  or  obligation.  But  on  the  same 
page  the  hunter  and  trapper  figure  in  another 
and  equally  strange  altitude.  It  is  asked 
whether  0*  could  not,  if  he  chose,  have  given 
B  indulgence,  and  whether  the  obligation  of 
the  contract  would  thereby  have  been  impair 
ed?  It  is  difficult  to  give  a  grave  answer  to 
this,  and  it  should  only  be  answered  by  anoth 
er  question.  Could  not  the  creditor  have  in 
dulged  the  debtor  in  the  case  decided  by  the 
court?  Could  he  not  have  forgiven  the  debt? 
And  would  that  have  impaired  the  obligation? 
The  constitution  did  not  intend  to  prohibit  a 
creditor  from  being  generous  to  his  debtor,  but 
only  to  deny  to  the  legislature  that  privilege 
without  the  consent  of  the  creditor.  But  B  and 
C,  before  they  retire,  are  exhibited  in  a  still 
more  extraordinary  attitude.  It  is  asked  on 
the  same  page,  whether,  as  C  had  a  right,  to  in 
dulge  B,  society  to  whom  C  has  yielded  the 
right  to  use  force,  has  not  the  same  right  to  in 
dulge  him?  Can  any  one  believe  that  this 
question  is  asked  seriously?  Is  not  the  author 
caricaturing  his  own  argument?  The  doctrine 
which  he  is  endeavoring  to  illustrate  through 
his  dramatis  persona},  the  trapper  and  hunter, 

•      •       _i     •_      i._*    !•    -U     ii,  •     .    mi  .'      i  f 


Dsurd  than  this,  as  has  been  shown  in  this  ar 
gument,  and  that  of  the  preamble  too;  and  it 
is  alluded  to  now  to  justify  the  declaration  that, 
if  any  definition  be  given  of  the  legal  obliga 
tion  of  a  contract  in  the  preamble,  there  are 
three,  all  different,  and  two  palpably  wrong,  to- 
wit:  that  it  is  the  moral  obligation,  and  that  it 
is  the  time;  and  one  in  exact  consonance  with 
that  given  by  the  court,  to-wit:  that  it  is  the  le 
gal  right  to  enforce  the  contract  by  legal  means. 
On  which  of  these  definitions  does  the  author 
rely?  Only  one  will  sustain  him,  and  that  is 
the  one  given  by  the  court,  and  therefore  he 
fortifies  the  decision  of  the  court,  while  He  is 
endeavoring  to  undermine  it.  But  why  did 
plainly  and  openly  give  some  single 
legal  obligation,  and  show  that  it  was 
inconsistent  with  the  opinion  of  the  court? 
The  only  answer  is,  because  it  could  not  bo 
done. 

If  there  was  any  attempt  to  show  what  is  tho 
legal  obligation  of  a  contract  in  the  whole 
preamble,  except  those  three  which  he  had  an 
imadverted  on,  he  desired,  he  said,  that  the 
author,  or  some  other  gentleman,  would  put  hia 
finger  on  it.  It  could  not  be  shown.  Where 
then  is  the  long  argument?  It  is  vanished,  is 
intangible,  invisible,  incomprehensible! 

He  might,  he  said,  safely  here  leave  the  pre 
amble,  but  he  felt  it  to  be  his  duty  to  notice  it 
is  in  plain  i'.nglish  this:  The  gentleman  from  i  still  further. 
Jefferson  has  a  right  to  give  away  his  whole  1  In  page  8,  it  is  stated  that  Montesquieu  lays 
estate;  therefore  the  legislature  can  give  it,  jit  down  as  political  orthodoxy,  that  laws  ought 
noltns  nolens,  willing  or  unwilling.  But  the  '  to  be  relative  to  the  nature  and  principle  of  the 
gentleman  would  not  submit  to  such  "usurpa- 1  government,  and  the  climate  of  the  country. 

T  i  .**{??...  •*  f  -  -.... 


tion."  He  would  say,  that  although  he  had 
surrendered  1o  society  the  right  to  compel  his 
creditor  by  force,  he  had  not  yielded  to  them 
the  right  to  elect  for  him  whether  it  should  be 
used,  and  that  the  constitution  reserved  to  him 
the  exclusive  right  to  his  own  property,  the 
right  to  give  it,  or  to  recover  it,  when  he  should 
think  fit  to  demand  the  coercion  of  the  law. 
Society  has  not  the  power,  in  these  United 
States,  constitutionally,  to  take  away  the  vest 
ed  right  of  the  individual  citizen  without  his 
consent,  or  without  returning  him  an  equiva 
lent. 

But  the  trapper  and  hunter  illustrate  the 
whole  argument  of  the  preamble,  and  if  the 
principles  in  these  exemplifications  are  im 
pound,  the  whole  doctrine  is  radically  wrong. 
Does  anv  one  believe  that,  because  the  hunter 
had  the  right  to  release  the  trapper  from  the 
obligation  of  hi*  contract,  the  legislature  in  a 


T-his  is  a  self-evident  truth,  a  political  axiom 
and  it  is  a  strong  argument  against  the  doc 
trines  intended  to  be  maintained  by  the  use  of 
it.  The  principle  of  the  government  is  jus 
tice,  its  nature  equality  of  right,  its  object  is  to 
enforce,  not  to  impair  contracts.  Conform  to 
this  fundamental  principle  of  legislation  re 
commended  by  Montesquieu,  and  there  will  bo 
stability  in  your  counsels  and  confidence  in 
your  acts,  and  the  spirit  of  legislation  will  be 
wise  and  constitutional.  But  never  permit  the 
atmosphere,  natural  or  political,  whether  torrid, 
temperate,  or  frigid,  to  dissolve  the  principles 
of  your  government;  adhere  to  Montesquieu, 
and  your  constitution  is  safe.  If  the  author  of 
the  preamble  expected  to  prove  anything  by 
his  quotation,  it  was,  that  when  the  poltiical 
atmosphere  is  heated,  the  constitution  must 
bend  to  it.  If  the  quotation  prove  this,  it 
proven  loo  much;  if  it  do  not,  if  prorei  nothing, 


ON  THE  COU11T  OF  APPEALS. 


„ 


except  that  the  principles  of  the  government, 
or  in  other  words  the  constitution,  must  con 
trol  its  legislation,  which  is  good  doctrine,  and 
decisive  of  this  contest. 

But  on  the  next  page,  and  in  the  same  para 
graph,  we  have,  said  he,  a  siill  more  extraordi 
nary  idea.  The  author  here  says,  "strange  that 
in  a  republic  the  appellate  court  should  have  I 
selected  fear,  the  principle  of  despotism,  as ' 
the  motive  to  duty."  What  is  the  principle  of 
all  law,  human  and  divine?  Is  it  not  to  com 
pel,  by  its  sanctions,  conformity  to  its  provis 
ions?  Does  the  law  persuade,  or  does  it  co 
erce?  Why  does  the  law  denounce  punish 
ment  on  the  criminal?  Is  it  not  to  deter  from 
the  perpetration  of  crime?  And  does  the  law 
in  this  instance  appeal  to  our  fears,  or  our  vir 
tue?  If  the  virtue  of  mankind  were  our  only 
security,  all  government  would  be  unnecessary. 
But  it  is  the  nature  of  all  government;  to  com 
pel  submission  to  its  mandates  by  force— a  leg 
islative  act  would  not  be  law  unless  it  were 


compulsory.     The    obligation    of 
would  be  nothing  unless  the  law 


a    contract 
-hould  en 


force  it,  whether  the  parties  have  virtue  enough 
or  not  to  comply.  It  is  only  when  their  own 
sense  of  justice  will  not  prompt  a  compliance, 
that  the  law  compels.  This  is  the  only  object 
of  the  law,  its  only  use. 

On  the  next  page,  it  is  asserted  that  if  the 
decision  of  the  court  be  correct,  the  states  "are 
in  very  deed  dwarf  vassals."  If  because  the 
federal  constitution  must  control  the  states, 


they  are  vassals 
solve  the  union. 


amend  the  constitution,  dis- 
The  states  have  surrendered 


But,  said  he,  on  the  game  page  there  is  a 
threat  in  disguise.  The 'author,  in  speaking 
of  what  may  be  the  consequences  of  the  de 
cision  of  the  court,  makes  this  quotation  from 
the  Holy  Bible:  "And  David  therefore  depart 
ed  thence,  and  escaped  to  the  cave  of  Adu)lam» 
and  every  one  that  was  in  distress,  and  every 
one  that  was  in  debt,  and  every  one  that  was 
discontented,  gathered  themselves  unto  him,, 
ami  he  became  their  captain  over  them." 

If  there  be  a  David  here  who  wishes  to  hoist 
the  standard  of  rebellion,  round  which  may- 
flock  the  desperate  and  discontented,  let  him 
be  told  that  he  is  a  traitor  and  not  forget  tho 
traitor's  fate.  He  who  thinks  that  the  peoplo 
of  Kentucky  are  prepared  for  sedition  and  rev 
olution,  will  find  himself,  after  experiment,  as 
much  mistaken  as  Aaron  Burr  was.  But  if 
there  be  a  David  in  this  House  who  wishes  to 
retire  with  his  followers  to  the  cave,  let  him 
go;  it  will  close  on  him  and  hide  him  from  the 
light  of  virtue  and  patriotism  forever.  His 
name  may  thus  acquire  immortality,  but  it 
will  be  the  immortality  of  infamy,  such  as  that 
of  ^Erostratus,  who  burnt  the  temple  of  l.'phe- 
sus.  - 

On  the  next  page,  the  author  complains  that, 
if  the  legislature  cannot  pass  retrospective 
laws  to  operate  on  contracts  made  before  their 
passage,  they  cannot  administer  relief  until  af 
ter  it  shall  have  become  unnecessary.  And  this 
is  the  reason  why  the  convention  only  pro 
hibited  laws  impairing  the  obligation  of  con- 


the  right  to  impair  the  obligation  of  contracts, 
and  cannot  now  complain  that,  without  it,  they 
are  vassals.  Besides,  they  have,  by  this  sur 
render,  only  denied  themselves  the  power  to  do 
wrong,  to  do  injustice.  The  people  will  not 
believe  that  they  are  vassals,  although  the  gen 
tleman  from  Jefferson  (Mr.  Rowan)  is  so 
kind  as  to  tell  them  so.  They  have  never  yet 
felt  the  yoke-,  nor  heard  the  clanking  of  the 
chain.  They  know  that  they  are  free,  and  are 
determined  to  continue  free.  They  know  too 
that  their  liberty  is  constitutional — that  it 
consists  in  fhe  integrity  and  stability  of  their 
constitution,  and  as  long  as  they  shall  revere 
that  and  their  (^od  as  they  should  do,  they  will, 
they  must  be  free.  They  are  not  vassals,  be 
cause  they  have  not  the  power  to  impair  con 
tracts;  they  are  only  the  more  secure,  the  more 
free. 

In  the  next  page  the  author  asks,  "can  the 
armor  worm  conquer  Kentucky?"  To  this  it 
is  only  necessary  to  respond  by  retorting  an 
other  question!  Can  the  little  spark  which, 
by  consuming  the  property  of  a  citizen,  involves 
him  in  inextricable  ruin,  conquer  the  sover 
eign  power  of  Kentucky?  Can  the  legislature 
restore  the  unfortunate  victim  by  taking  from 
his  neighbors  a  portion  of  their  superfluous 
property  and  giving  it  to  him?  If  they  can 
not  thus  relieve  him  the  author  of  the  pream 
ble  would,  according  to  his  argument,  infer 
that  they  are  not  sovereign.  They  cannot  do 
it,  and  are,  notwithstanding,  as  sovereign  as  it 
i*  proper  that  the}'  should  be. 


racts  already  made, 
be  no  pressinsr  motiv 


because,  as  there  would 
influencing  legislatures 


:o  pass  prospective  indulgence  laws,  it  was  on 
ly  necessary  to  prohibit  that  which  they  might 
have  strong  temptation  to  indulge  in — retro- 
pective  legislation.  The  obligation  of  a  con 
tract  cannot  be  impaired  by  a  law  in  force 
when  the  contract  is  made,  for  it  is  the  law  in 
force  at  the  time  which  alone  constitutes  the 
legal  obligation. 

In  page  16,  the  author  complains  that  tho 
third  judge  hivokes  to  his  aid,  in  construing  the 
contested  clause  in  the  constitution,  "the 
ephemeral  effusions  of  the  revolutionary  period 
of  the  American  History."  Of  all  the  objec 
tions  which  the  most  fertile  imagination,  or  tho 
most  fastidious  criticism,  or  the  most  malig 
nant  envy,  could  have  conjured  up  against  the 
reasoning  of  the  court,  a  man  in  his  sober 
senses  never  could  have  conjectured  that  a  re 
currence  to  the  history  of  the  events  which  im 
mediately  preceded  the  adoption  of  the  federal 
constitution,  and  which  alone  induced  the- 
adoption  of  the  clause  in  relation  to  the  obliga 
tion  of  contracts,  could  be  deemed  by  any  ono 
in  quest  of  truth,  to  be  improper  or  useless. 
When  it  is  important  to  ascertain  the  import  of 
any  clause,  what  is  a  more  sure  mode  of  doing 
it  than  to  recur  to  the  causes  which  prompted 
it,  and  the  objects  of  those  who  penned  it?  Bub 
the  author  is  provoked  with  one  of  the  judges,, 
for  adverting  to  these  authentic  sources  for  con 
firmation  of  his  opinion,  because  they  are  au 
thentic  and  decisive  of  the  controversy.  It 
would  have  been  much  better  for  him  to  have 
examined  this  history  arid  endeavored  to  aroid. 


SFKBCII  OF  MR.  BOBERTSOH. 


its  illustrations.  His  nut  having  done  so  is 
evidence  that  he  could  not,  and  that,  there 
fore,  the  conclusions  drawn  by  the  court  are 
just.  But  as  ho  had  already  spoken  in  the 
proper  place  on  this  subject,  he  would  not,  said 
he,  say  more  now;  he  had  only  referred  to  it  to 
show  the  desperation  to  which  the  author  of 
the  printed  book  must  be  driven,  when  he  at 
tempts  to  make  the  use  of  it  which  he  does. 


But  a  still  more  striking 
source  is  displayed  by  the 


destitution  of  re- 
.uthor  on  the  same 


page.  Hu  here  quotes  the  13th  and  14th  sec 
tions.^  the  10th  article  of  the  Kentucky  cou- 
.  stitution,  which  declare  "that  courts  shall  be 
open,  and  every  person  for  an  injury  done  him 
in  his  lands,  goods,  etc.,  shall  have  remedy  by 
due  course  of  law,  and  right  and  justice  admin 
istered  without  sale,  denial,  or  delay,"  and 
"that  no  power  of  suspending  laws  shall  be  ex 
ercised,  except  by  the  legislature  or  its  author 
ity,"  and  then  says  that  the  "judges  have  not 
only  repealed  the  Jaws  of  their"  state,  but  they 
hare  repealed  the  14th  article  last  above 
quoted,  of  the  constitution  of  their  state." 
What  process  of  reasoning  has  conducted  the 
author  to  this  conclusion,  it  would  be  difficult 
to  know.  Does  he  suppose  that  the  legislature 
of  Kentucky  can  suspend  the  operation  of  any 
law,  in  defiance  of  the  federal  constitution,  or 
even  of  the  constitution  of  Kentucky?  T^oes  he 
suppose  that  the  state  constitution  repeals  the 


Whether  the  legislature  harepoifrer  to  suspend 
airy  particular  law,  is  a  question  always  to  be 
determined  by  examining  the  entire  federal  and 
state  constitutions;  and  if  the  suspension  be 
contrary  to  any  provision  in  cither,  it  is  unau 
thorized.  Why  the  suspending  power  was 'al 
luded  to  ill  the  preamble,  it  remains  for  some 
one  of  more  than  common  acumen  to  discover. 

The  court  in  their  decision  have  not  repealed 
any  law,  as  has  been  already  shown,  and  it  is 
equally,  and  if  possible  more  certain,  that 
they  have  not  repealed  or  disregarded  any  con 
stitutional  provision  or  principle.  If  the  leg 
islature  have  the  power  to  suspend  all  law,  it 
would  be  difficult  to  perceive  the  efficacy  or 
object  of  many  wise  and  important  provisions 
in  the  federal  and  state  constitutions. 

On  the  next  page  the  author  gravely  asks 
this  question:  "How  happened  it  that  the  en 
lightened  state  of  Virginia  has  been  violating 
the  obligation  of  contracts  since  the  year  1748, 
and  that  none  of  her  statesmen  or  judges  had 
the  acumen  to  discover  it?"  Before  this  ques 
tion  was  propounded,  the  [author  ought  not  to 
have  forgotten  that  the  federal  constitution  did 
not  go  into  effect  until  the  4th  day  of  March, 
1789;  and  that  before  that  era  there  was  no 
constitutional  prohibition,  of  the  passage  of 
laws  impairing  obligations,  and  that  to  pre 
vent  such  legislation  in  future  was  the  only  ob 
ject  of  the  clause  in  the  federal  constitution 


federal?    He  says  that  Kentucky  was  received  prohibiting  it.     The  practice  of  Virginia,  then, 

before  1789,  proves  nothing;  and  no  evidence 
has  been  produced  of  her  since  passing  retro 
spective  laws  extending  replevies.  If  she  ev- 


into  the  Union  with  this  clause  in  her  constitu 
tion.  True;  but  those  who  adopted  her  sup 
posed,  as  every  honest  man  in  his  senses  now 
believes,  that  the  legislature  would  only  have 
power  to  suspend  such  laws,  as  they  were  not 
prohibited  by  the  federal  constitution  and  that 
of  Kentucky  from  suspending.  If  the  legisla 


ture 


er  did  pass  such  since,  they  were  soon  repealed, 
and  a  question  was  never  submitted  to  her 
courts  on  their  constitutionality.  If  it  could 
be  shown  that  such  a  law  had  been  passed, 
and  decided  to  be  valid  by  the  courts,  the 
case  would  present  some  shadow  of  argument; 
but  until  this  be  shown,  there  is  nothing  even 
plausible  in  the  idea  suggested  and  intended 
to  be  supported  by  the  interrogatory. 

In    page  19,  the  author  urges  an  argument 

suspend  any  law,  but  only  that  such  as  could  '  more  futile  than  any  which  have  been  noticed, 
be  constitutionally  suspended,  ctmld  only  be  ;  He  here  seems  to  think,  that  if  the  two  years' 
suspended  by  the  legislature.  No  power  of  j  replevin  act  be  void  in  its  operation  on  con- 
repealing  laws  can  be  exercised  except  by  the  I  tracts,  made  before  its  passage,  there  would  be 
legislature.  But  the  legislature  cannot  repeal  I 

1 __!•__  .1  1       !  T  <         '  1 


pass  a  law  which  vests  private  rights, 
they  cannot  suspend  or  repeal  it  so  as  to  sus 
pend  or  divest  the  rights.  The  only  meaning 
of  the  clause  is,  that  there  shall  be  no  power 
to  suspend  laws,  except  by  the  legislature.  It 
was  not  intended  that  the  legislature  should 


laws  so  as  to  divest  vested  rights.  It  is  only 
necessary  to  look  at  all  the  provisions  of  the  con 
stitution  to  ascertain  the  extent  of  the  suspend 
ing  power,  if  indeed  any  doubt  can  exist  on  the 
subject.  The  legislature  alone  can  suspend 
laws;  but  the  federal  constitution  declares  that 
they  shall  not  impair  the  obligation  of  con 
tracts.  Place  the  two  provisions  in  juxtaposi 
tion,  and  the  difficulty,  if  any  exist,  vanishes. 
The  grant  of  power  Vould  then  read  thus: — 
"Nopowerof  suspending  laws  shall  be  exer 
cised,  except  by  the  legislature  or  its  authori 


no  replevin,  because  that  act  repeals  all  other 
replevin  acts!  Has  he  forgotten  that  if  the 
two  years'  replevin  act  be  void,  it  does  not  re 
peal  the  former  acts?  It  would  be  difficult  to 
suppose  that  a  nonentity  could  destroy  an  en 
tity.  If  the  two  years'  act  be  void  as  to  all 
contracts  made  before  its  passage,  it  results 
that  the  law  which  is  intended  to  be  repealed 
by  it  is  still  in  force,  so  far  as  those  contracts 
arc  concerned. 

On  the  same  page  the  author  expresses  the 
opinion,  that  if  an  extension  of  replevin  be 
unconstitutional  and  injurious  to  the  creditor, 


ty." — "But  the  legislature  shall  not  impair  the  an  abridgment  of  it  would  be  equally  so  to  the 
obligation  of  contracts."  Whilst  there  is  a  debtor.  _It  is  not  necessary  to  discuss  this 
power  to  suspend  laws,  it  is  with  the  qualifica- 


tion  that  in  its  exercise  the  obligation  of  con 
tracts  shall  not  be  impaired;  and  if  by  suspend 
ing  a  particular  law,  the  obligation  be  im 
paired — the  suspension  is  unconstitutional. 


point.  But  it  may  not  be  improper  to  observe, 
that  if  the  constitution  had  been  silent  on  the 
subject,  the  state  legislatures  would  yet  have 
the  power  which  they  so  much  abused  when 
they  had  it,  of  impairing  the  obligation  of  con- 


ON  THE  COURT  OF  APPEALS. 


T3 


tracte.  The  constitution  only  withdraws  the 
power  to  impair,  it  does  not  deny  all  other 
power,  to  make  stronger  and  more  binding, 
<fec.,  and  there  was  no  necessity  to  extend  the 
prohibition  further  than  the  convention  did; 
For  there  was  no  danger  of  any  other  legisla 
tion  in  relation  to  contracts,  than  that  which 
is  prohibited. 

In  the  next  page  it  is  urged  that  the  legisla 
ture  may,  by  a  re-organization  of  the  courts, 
postpone  consequentially  the  enforcement  of 
contracts ;  and  that  therefore  they  can  do  it  di 
rectly.  If  the  legislature  make  a  convenient 
and  reasonable  change  in  the  courts,  for  the 

Eurpose  of  improving  them,  the  object  being 
jgitimate,  the  act  is  constitutional,  because  it 
is  expressly  authorized  by  the  constitution. 
But  a  total  occlusion  of  the  courts,  or  postpone 
ment  of  their  sessions,  for  the  purpose  of  delay, 
would  be  an  abuse  of  power — a  perversion  of  it 
to  an  end  interdicted  by  the  constitution— and 
would  therefore  be  unconstitutional.  A  per 
version  of  delegated  power  to  a  purpose  for 
which  it  was  not  only  not  intended,  but  which 
is  expressly  prohibited,  is  as  unconstitutional 
and  void  as  if  the  act  were  done  without  au 
thority.  If  the  legislature  cannot  directly 
postpone  the  remedy,  or  suspend  it  so  far  as 
previous  contracts  are  affected,  they  cannot  do 
it  indirectly.  Congress  have  power  to  declare 
war — death  may  be  one  of  its  consequences — 
yet  Congress  would  not  have  the  power  to  or 
derthe  death  of  the  people  by  a  direct  law  for 
that  purpose-.  So  the  legislature  have  the 
power  to  regulate  the  courts;  delay  may  be  oiu 
of  the  consequences  of  exercising  this  power 
but  the  legislature  have  not  therefore  the  righ 
to  legislate  for  the  purpose  of  delay,  or  to  pio 
duce  it  directly.  It  would  be  very  absurd  t< 
suppose  that  because  an  accidental  inconven 

.         rl  li      C J.1.  _    1 •       _     _£     . 


ed  by  a  sense  of  duty  to  his  country,  and  to  the 
-jause  of  truth  and  the  constitution.  He  hoped 
herefore  that  any  thing  which  he  had  said 
would  not  wound  the  sensibilities  of  its  author, 

*  of  any  one  who  may  co-operate  with  him. 
3ach  is  entitled  to  his  own  opinion,  and  is  re 
sponsible  only  to  his  conscience  and  Ids  con 
stituents  for  its  exercise;  and  it  is  the  duty  of 
all,  so  to  act,  as  not  only  to  deserve  the  appro- 
nation  of  the  people,  but  to  ensure  the  peace  of 
sound  conscience. 

He    would,   tie    said,  now,  in  a  verv   few 
words,  answer  an  argument  he  had  heard  in 

onversation.  It  is  not  to  be  found  in  the 
book.  It  is  too  fallacious  even  for  a  pluc" 
there.  It  is  this:  If  a  man  make  a  contract  in 
Virginia  under  a  three  months'  replevin  law, 
and  afterwards  come  to  Kentucky  where  the 
replevin  is  two  years,  would  he  not  have  a 


right  to  re 
pair  the  ob 


two  years,  and  would  that  hn- 
afioii  of  the  contract?    He  would 


certainly  have  a  right  to  replevy  two  years,  and 
would  as  certainly  not  impair  the  obliga 
tion.  And  the  reason  is  obvious;  the  legisla 
ture  of  Kentucky  can  only  legislate  over  the 
citizens  and  soil  of  the  state;  and,  in  doing  so, 
do  not  invade  the  rights  of  others;  and  when 
a  citizen  of  Virginia  comes  to  Kentucky,  ho 
must  -<ubmit  to  the  laws  of  Kentucky.  In  tin- 
case  put,  the  contract  is  not  impaired  by  the 
law  of  Kentucky.  If  it  be  impaired  at  all,  it 
is  by  the  obligor,  in  withdrawing  himself  from 
the  operation  of  the  laws  of  Virginia.  The 
lex  locir governs  the  construction  of  the  con 
tract — the  lex  fori  its  enforcement.  The  legis- 
ture  of  Kentucky  can  only  legislate  over  con 
tracts  made  in  Kentucky,  and  they  cannot  im 
pair  the  obligation  of  those  contracts.  They 
cannot  legislate  over  contracts  made  in  Vir 
ginia,  and  therefore  do  not,  by  any  legislation, 


ience  may  result  from  the  honest  exrecise  of  a    mpair  their  obligation. 


general  power,  therefore  it  would  be  lawful  to 
effect  the  same  consequence  directly.  A  has 
the  right  to  clear  his  own  land ;  if,  in  the  hon 
est  and  faithful  exercise  of  this  right,  a  tree 
accidentally  fall  on  B  and  kill  him,  A  is  inno 
cent.  But  if  the  tree  had  been  wantonly  felled 
for  the  purpose  of  killing  B,  A  would  have 
been  guilty  of  murder.  In  the  one  case  he 
would  be  innocent,  because  the  killing  of  B 
was  an  accidental  consequence  of  A's  exercis 
ing  his  right  to  fell  his  timber;  in  the  other  case 
he  would  be  guilty,  because  he  perverted  his 
general  right  to  cut  down  trees  to  an  illegal 
purpose.  These  familiar  cases  are  sufficient  to 
illustrate  the  argument.  It  will  not  endure 
scrutiny. 

The  remainder  of  the  book  under  review  con 
sisted  principally  of  references  to  the  decision 
of  the  Court  of  Appeals.  He  would  not  again 
notice  these,  he  said,  because  he  had  before 
done  it.  He  would  therefore  leave  the  book 
after  what  he  had  said  of  it,  to  its  fate.  H< 
had  examined  it  freely,  but  he  thought  candid 
ly  and  fairly.  It  was  now  public  property — 
the  state  had  paid  for  it — and  every  citizen 
had  a  right  to  think  and  speak  without  reserve 
of  its  demerits  as  well  as  merits.  He  had  done 
so;  and  felt  sure  that  he  had  been  only  prompt 
10 


He  had  endeavored,  lie  said,  to  sustain  the 
lecision  of  the  court,  by  such  arguments  as 
uid  occurred  to  him;  and  he  had  taken  the  lib 
erty  of  fortifying  those  arguments,  by  the  print 
ed  preamble  to  the  resolutions,  which  he 
nought  he  had  done.  He  had  perhaps  mani- 
ested  too  much  zeal.  If  he  had,  he  hoped  to 
)e  excused;  it  was  an  honest  zeal  in  the  cause 
of  the  constitution,  and  of  the  best  interests  of 
;he  people  and  their  posterity.  If  the  resolu- 
;ions  be  adopted,  a  precedent  will  be  estab 
lished  which  will  unhinge  the  constitution, 
and  render  the  legislature  supreme  and  above 
the  constitution  by  which  they  are  created. 

The  country  maybe  thrown  into  commotion, 
and  the  public  mind  into  great  effervescence, 
but  no  relief  will  be  administered.  It  had 
been  stated  that  the  principles  which  he  advo 
cated  are  not  republican.  This  had  no  ter 
rors  for  him.  He  cared  not  for  party  names  or 
denunciations.  His  only  aim  and  wish  was 
to  do  right,  and  it  would  be  very  difficult  to 
determine  what  some  men  meant  by  republi 
canism.  If  the  constitution  is  republican — if 
justice  is  republican,  the  principles  which  he 
had  endeavored  to  defend  arc  republican.  If 
to  pin  one's  faith  on  another  man's  sleeve;  if  to 
act  with  the  majority,  right  or  wrong,  Vicar  of 


•;  \ 


SPEECH  OF  MR.  ROBERTSON. 


Bray  lik^;  if  to  sacrifice  conscience  and  judg 
ment  at  the  shrine  of  popularity;  if  to  flattef 
the  people  and  incite  them  and*array  them  in 
to  parties,  to  mount  to.  power  and  influence, 
whilst  their  real  interests  are  disregarded;  if 
to  play  the  mock  patriot  and  proscribe  freedom 
of  opinion,  of  conscience  and  of  speech;  if 
these  constitute  a  republican,  he  disavowed  re 
publicanism,  emphatically  and  indignantly, 
fent  if  to  pursue  the  unbiassed  dictates  of  con 
science  and  judgment — if  to  think  for  one's 
self  in  defiance  of  the  opinions  of  others — if  to 
love  the  constitution  and  respect  the  people — 
if  to  do  right,  however  unpopular,  and  aojure 
error,  however  popular — if  to  .express  opinion 
candidly,  independently,  and  fearlessly — if  to 
revere  one's  country,  and  feel  solicitude  for  its 
permanent  happiness  and  honor — if  to  love 
equality  and  despise  denmgogueism;  if  these 
are  badges  of  an  orthodox  republican,  he  would, 
without  egotism,  ^lairn  the  honor  of  being  an 
undeviating  republican,  in  the  most  sterling 
import  of  the  appellation.  His  republicanism 
was  not  in  professions,  but  in  practice — not  in 
words,  but  in  deeds.  It,  recognized  the  sov 
ereignty  of  the  people,  but  required  their  su 
premacy  to  be  displayed  conformably  to  their 
political  compact.  He  believed  that  in  irs  in 


violability  consisted  riot  only  the  sovereignty 
of  the  people,  but  their  peace,  security,  and 
happiness.  Let  them  alone,  they  will  do  right. 
Do  not  entangle  them  in  an  unnatural  and  un 
profitable  contest  among  themselves;  do  not 
force  thorn  to  deny  the  authority  of  their  con 
stitution,  and  perhaps  the  power  of  the  general 
government. 

Preserve  the  consfcituiion  and  the  honor  of 
Kentucky.   This  can  only  be  done  by  rejecting 
the  resolutions.     Let  me  once   more,  said  he, 
beseech  you  to  appeal  to  your  judgments,  and 
let  them  control  your  votes.     Refrain  from  an 
i  act  at  which  your  posterity  ,may  blush;  trans- 
!  mit  to  them,  as  your  best  legacy,  your  constitu 
tion  'unimpaired,  and  consecrated  by  your  ven 
eration;  this  will  ensure  its  longevity  and  their 
i  happiness. 

Every  other  state  in  the  Union  is  now  tran 
quil    and    prosperous.     Why  is  it  that  Ken 
tucky,  the  Delta  of  America,  should  be   dis 
tracted  and  harassed!     It  is  her  legislation,  her 
party  and  petty  strifes  and  struggles.    Bury 
them   all— surrender  them  at  the  altar  of  your 
country's  good.     Return  to  a  stable  and  consti- 
I  tutional  policy,  and  Kentucky  will  le  regencr- 
|  ated.  and  her  people  once  more  rallied  under  the 
standard  of  Justice  and  the  Constitution. 


PRELECTION. 


On  the  20th  December,  1824,  another  long  and  fulminating  pream 
ble  and  resolutions  for  the  removal  of  the  Appellate  Judges  by  address 
were  adopted  by  the  House  of  Representatives  by  the  following  vote: 

Yeas — Mr.  Speaker.  Messrs.  Booker,  H,  O.  Brown,  Buckner,  Buford, 
Caldvvell,  Carter,  Chenovvith,  Clarkson,  Coleman,  Cosby,  Dallain,  A.  H. 
Davis,  S.  Daviess,  Forrest,  Fulton,  Galloway,  Garth,  J.  G.  He,rdin,  M. 
Hardin,  Hodge,  Holt,  Hunter,  Joy  eg,  Litton,  Marksberry,  Mason,  Mau- 
pin,  Mayo,  M'Brayer,  •  J.  •  M'Connell.  Middleton.  Morehead,  Morgan, 
Mosely,  Mullens,  Napier,  J,  Patterson,  Porter,  Prm<-c.  Riddle,  W.  Rob 
ertson,  Hodman,  Rountltree,  Rowan.  Samuel,  Shortridge.  Slark,  Spal- 
ding,  Stephens,  Stone,  Summers,  J.  Taylor.  Thomas.  »Triplett,  Wade, 
Watkins,  Wilcoxen,  W.  C.  Williams.  W.  Wilson  and  Wing-ate — 61. 

Nays — Messrs.  Bates,  Breck,  Brents,  G.  I.  Brown,  Ohape/e.  Cox,  Crit- 
tenden,  Cunningham,  Evans,  Farmer,  Ford,  Gibson,  Goggin,  Gordon, 
Green,Gresham,  B.  Hardin.  Kennedy,  J.  M.  M'Connell,  Miller.  Morrit, 
New,  Oldham,  W.  Patterson,  H.  C.  Payne,  W.  C.  Payne.  G.  Rohfertson, 
Shepherd,  Simpson,  Sterrett,  R.  Taylor,  Thruston,  True,  Turner.  Wick 
liffe,  L.  Williams,  Willis,  T.P.  Wilson  and  Woods— 39. 

Two-thirds,  as  required  by  the  constitution,  not  concurring,  the  Judges 
were  not  removed.  But  the  Senate,  anticipating  that  result,  had,  on  the 
9th  day  of  December,  1824,  passed  a  bill  to  abolish  the  Court  of  Appeals, 
and  organize  a  new  court,  under  pretence  of  "reorganizing"  the  court.— 
The  Senate's  vote  on  that  bill  was  as  follows: 

'Those  who  voted  in  the-  affirmative,  are,  Messrs.  C.  H.  Allen,  J.  Allen, 
Ballinger,  Barrett,  Beauchamp,  Daniel,  Dawson,  Denny,  Dudley,  Ew- 
ing,  Forsy the.  Hughes,  Lyon,  Maccoun,  Mayo,  P.  N.  O'Bannon,  W.  B. 
O'Bannon,  Selby,  Smith,  T.  Ward,  Worthington  and  Yancey. 

Those  who  voted  in  the  negative,  are,  Messrs.  C.  Allen,  Beaty.  Bow 
man,  Carneal,  Crutcher,  Davidson,  Faulkner,  Flournoy,  Hickman,  How 
ard,  Lockett,  Muldrow,  Stephens,  J.  Ward,  White  and  Wickliffe. 

And  the  House  concurred  in  that  bill  on  the  23d  of  the  same  month,  at 
Midnight,  in  great  tumult,  by  the  following  vote: 

Yeas— Mr.  Speaker,  Messrs.  Booker,  H.  O/»  Brown,  Buckner,  Buford, 
Caldvvell,  Carter,  Chenovvith,  Clarkson,  Coleman,  Dallam,  A.  H.  Davis, 
S.  Daviess,  Forrest,  Fulton,  Garth,  J.  G.  Hardin,  Hodge,  Holt,  Hunter, 
Joyes,  Litton,  Marksberry,  Mason,  Maupin,  Mayo,  M'Brayer,  M'Con- 
nell,  Middleton,  Morehead,  Mosely,  Mullens,  Napier,  Porter,  Prince. 
Riddle,  W.  Robertson,  Rodman,  Roundtree,  Rowan,  Samuel,  Shortridge, 
Slack,  Spalding,  Stephens,  Stone,  Summers,  J.  Taylor,  Thomas,  Wade, 
Wilcoxen,  W.  C.  Williams,  W.  Wilson  and  Wingate— ft4. 

Nays — -Messrs.  Bates,  Breck,  Brents,  G.  I.  Brown,  Chapeze,  Cosby r 
Cox,  Crittenden,  Cunningham,  Evans,  Fanner,  Ford,  Gibson,  Goggin, 
Gordon,  Green,  Gresham,B.  Hardin, M.  Hardin,  Kennedy,  J.  M.  M'Con- 
nell,  Miller,  Morris,  New,  Oldham,  J.  Patterson.  W.  Patterson,  H.  C, 
Payne,  W.  C.  Payne,  G.  Robertson,  Shepherd,  Simpson,  Sterett,  R.  Tay 
lor,  Thruston,  Triplett,  True,  Turner,  Watkins,  Wickliffe,  L.  Williams, 
Willis,  T.  P.  Wilson  and  Woods— 43. 

The  arguments  against  the  bill  were  elaborate  and  exceedingly  able. 
And,  in  that  debate,  Mr.  Robertson  delivered  the  subjoined  speech. 


SPEECH  OF  MR,  ROBERTSON. 

On    the    Bill  to   Re-Organize    the    Court    of    Appeals. 
[Delivered  in  the  House  of  Representatives  of  Kentucky,  Dec.  23d,  1824." 


Mr.  Robertson  said,  he  did  not  expect  to  be 
able  to  add  many  rays  to  that  flood  of  light 
which  had  already  been  poured  on  this  mo- . 
mentous  subject,  by  his  friends  who  had  pre 
ceded  him  in  the  argument.     That  light  had  j 
not  been  extinguished;  It  is  inextinguishable;  j 
it  is  tlie  light  of  reason,  and  of  truth.     The  j 
unconstitutionality  of  the  bill  under  consider-  \ 
ation  had  been  portrayed  in  the  brightness  of 
sunshine;  yet,  when  he  saw  the  constitution  of 
his  country  about  to  be  violated — when  he  saw  \ 
the  main  pillar  in  the  temple  trembling,  and 
tottering  to  its  fall— when  he  saw  the  altar  of 
justice  about  to  be  profaned,  silence  would  be 
treason  to  his  own  conscience,  and  to  the  most 
sacred    principles    of    free   government.     He 
should  speak  plainly,  and  with  that  freedom 
which  the  magnitude  of  the  subject  required, 
and  which  would  become  a  freeman,  the  Mag- 
na   Charta  of    whose   liberty  is  endangered. 
And  he  only  asked  that  attention  to  his  argu 
ment,  which  the  duty  of  every  member  to  his 
oath  and  his  constitution,  requires  him  to  give 
to  all  that  can  be  said;  and  if  he  should  fail  to 
convince,  or  even  bring  to  doubt  a  solitary 
mind,  he   should  at  least  stay  for  a  few  mo 
ments  the  blow  that  is  aimed  at  the  constitu 
tion. 

I  had  thought,  said  Mr.  Robertson,  that  the 
thick  darkness  which  had  overhung  the  politi 
cal  horizon,  was  beginning  to  retire  before  the 
light  of  truth,  and  that  I  could  see  the  dawn 
ing  of  a  brighter  and  happier  day  for  Ken 
tucky.  But  never  did  she  see  so  dark  and  por 
tentous  a  day  as  this:  this  is  her  most  eventful 
crisis.  Mie  is  about  to  determine,  not  wheth 
er  she  will  put  down  her  judges,  but  that  con 
stitution,  which  is  now  under  trial.  In  all  the 
ragings  of  the  political  storm,  although  the 
flood  of  party  had  threatened  to  deluge  much 
of  the  social  and  moral  region,  and  leave  scarce 
any  monument  behind  its  desolating  career, 
yet  1  had  hoped  there  was  one  consecrated 
spot  on  which  the  political  ark  might  rest  in 
safety;  that  spot  is  the  sanctuary  of  justice. 
But  even  that  is  about  to  be  overwhelmed;  and 
whenever  it  shall  be,  the  patriot  may  despair  of 
the  commonwealth.  But  I  will  not,  said  he, 
yet  despond;  the  restorative  is  with  the  peo 
ple;  they  will  correct  our  aberrations,  and 
prove  that  they  are  determined  to  defend  their 
constitution,  even  against  the  attacks  of  those 
who  assail  it  in  the  abused  name  of  liberty. 

Whatever  may  be  the  decision  of  this  house 
on  this  bill,  I  shall  not  despair  of  the  ultimate 


triumph  of  reason  and  justice  over  passion  and 
violence.  I  shall  have  confidence  in  the  intel 
ligence  and  virtue  of  the  people.  They  are  the 
safest  depository  of  our  rights.  They  may  be 
deceived  for  a  while  by  the  ambitious  and  de 
signing,  but  after  sufficient  deliberation,  the 
delusion  will  vanish,  their  fervor  will  subside 
into  the  calm  of  that  right  reason  which  they 
possess,  and  which  seldom,  if  ever,  errs.  Be 
fore  that  august  tribunal  this  question  must 
come;  and  it  requires  not  the  spirit  of  prophecy 
to  predict  what  will  be  their  verdict;  they  will 
pronounce  their  judgment  irreversibly,  and  in 
tones  of  thunder,  unless  I  am  a  total  stranger 
to  their  character.  They  will  understand  this 
bill;  they  will  consider  it  as  the  desperate  ex 
pedient  of  party  and  individual  aggrandize 
ment.  They  do  not  feel  the  influence  of  any 
of  the  little,  personal  or  sordid  motives  which 
may  sometimes  animate  the  aspiring.  They 
have  no  petty  ambition  to  gratify.  They  dc* 
not  envy  their  judges,  nor  covet  their  offices. 
All  they  desire  is  good,  equal  laws,  steadilyr 
wisely,  and  honestly  administered.  They  are 
a  magnanimous  people,  an  intelligent  people; 
and  although  some  of  them  may  be  somewhat 
depraved,  by  the  demoralization  of  unjust  leg 
islation,  and  the  relaxation  of  some  of  the  most 
consecrated  ties,  social  and  political,  they  are 
yet  a  virtuous  and  &  just  people.  They  de 
spise  whatever  is  stained  with  dishonor — they 
are  the  same  people  who  assisted  in  achieving: 
the  civic  victory  in  '98;  when  some  of  those 
who  are  now  in  the  van  of  the  multitude,  cru 
sading  against  the  judiciary,  were  in  the  ene 
my's  ranks — they  are  the  same  people  who  de 
nounced  the  alien  and  sedition  acts;  whilst 
some  of  those  who  now  swell  the  chorus  against 
the  judges  advocated  them— 4hey  are  the  same 
people  who  poured  out  some  of  their  richest 
blood  at  Raisin,  and  conquered  at  Orleans; 
whilst  many  who  are  now  patent  democrats, 
were  railing  at  their  firesides  against  the  justice 
of  the  war.  Such  a  people  will  never  sanction 
legislative  stealth.  They  will  tell  you,  sir,  that 
if  the  judges  deserve  to  be  removed  from  office, 
they  (the  people)  have  prescribed  to  you  the 
only  modes  in  which  they  intend  that  you  shall 
act;  that  to  attempt  to  effect  the  end  in  any 
other  mode,  is  treachery  to  them,  and  worse 
than  treachery  to  ourselves.  They  will  tell 
us,  that  if  the  judges  must  be  removed,  it 
should  be  done  openly,  fairly  and  directly,  not 
insidiously,  indirectly  or  sneakingly;  that  it 
must  be  done  in  such  a  manner  as  will  be  com- 


BILL  TO  RE-ORGANIZE  COURT  OF  APPEALS. 


77 


patible  with  the  character  of  a  brave,  frank, 
end  lofty  people;  in  short,  as  Kentuckians 
should  do  it.  If  we  cannot  break  the  judges, 
we  are  not  to  break  the  constitution.  They  did 
not  send  us  here  to  take  offices  from  one  set  of 
men,  only  to  give  them  to  another,  npr  to  strug 
gle  for  victory  over  each  other,  but  to  endeavor 
to  harmonize  in  trying  and  settling  a  great 
principle,  whether  the  judiciary  is  a  co-ordi 
nate  branch  of  the  government.  They  expect 
us  to  try  the  judges  by  the  constitution,  and 
either  acquit  them  or  condemn  them,  accord 
ing  to  its  principles. 

There  will  be  no  peace  until  this  question  is 
settled  fairly.  You  wi  11  only  multiply  difficul 
ties,  and  increase  the  inflammation  of  the  pub 
lic  mind,  by  passing  this  bill.  It  settles  no 
principle.  It  establishes  nothing,  except  that 
the  judges  cannot  be  constitutionally  removed, 
and  that  therefore  they  shall  be  forcibly  re  - 
moved,  to  give  place  to  some  hungry  expect 
ants,  who  arc  unable  to  live  without  some  nour 
ishment  from  the  treasury  paps — the  spring  of 
whose  patriotism  is  money — Hie  object  of 
whose  outcry  against  the  judges  is  to  get  their 
places.  If  Kentucky  is  prepared  to  sanction 
such  a  prostitution  of  her  constitution,  her  pub 
lic  virtue  is  gone,  and  she  is  ready  to  receive 
the  yoke  of  some  modern  Pisistratcs,  Caesar  or 
Cromwell.  Whenever  she  shall  be  so  far  lost 
to  a  sense  of  justice  and  honor,  she  is  prepared 
to  surrender  her  altars  and  her  gods,  and  is 
practically  just  as  free  as  the  Romans  under 
Augustus,  Tiberius  or  Caligula. 

If  we  reject  this  bill,  we  shall  once  more 
meet  together  as  brothers,  united  in  behalf  of 
the  great  interests  of  our  state,  our  civil  and 
criminal  code,  internal  improvement,  and  the 
diffusion  of  knowledge  by  education.  But  if 
we  pass  it,  we  shall  raise  a  storm  that  we  may 
not  be  able  to  withstand;  like  a  tornado,  it  may 
tear  up  every  thing  by  the  roots.  You  may 
force  your  judges  from  the  bench  by  violence, 
because  they  are  faithful  to  the  constitution, 
and  will  not  submit  to  be  voluntary  victims  of 
its  violation;  but,  sir,  their  cause  "will  not,  as 
that  of  the  great  Dewitt,  go  down  with  them; 
it  is  the  cause  of  justice  and  truth — their  coun 
try's  cause — and  will  prevail;  and  it  is  consola 
tory  to  know,  that  in  more  sober  times,  justice 
will  be  done.  However  much  they  may  be  slan 
dered,  or  persecuted,  they  may  well  say  to 
each  other  as  Latimer  did  to  Ridley,  when  they 
were  burning  at  the  stake  for  the  firmness  of 
their  religious  faith:  "Be  of  good  courage, 
Ridley,  our  persecutors  will  be  disappointed, 
for  our  sufferings  will  lead  men  to  inquire  into 
that  cause  for  which  we  suffer;  and  the  fire 
which  consumes  us  will  light  up  such  a  flame 
as  I  trust  in  God  will  never  be  extinguished." 
To  the  bar  of  enlightened  public  opinion  they 
will  appeal,  and  not  in  vain.  At  the  same 
bar,  the  actors  in  this  drama  must  sooner  or 
later  be  tried.  But  we  shall  have  to  appear 
before  still  higher  tribunals — the  bar  of  con 
science,  and  the' bar  of  heaven — where  equal 
and  exact  justice  will  be  done  to  the  motives 
and  conduct  of  all. 

Let  not  those  who  are  called  judge  breakers 


forgetthe  instability  of  human  power,  the  vicis 
situdes  of  capricious  fortune;  let  them  not  for 
get  that  the  greatest  men,  the  Ceesars  of  their 
day,  have  fallen;  and  that  the  proudest  em 
pires,  and  most  splendid  republics,  even 
Athens,  Carthage  and  Rome,  have  tumbled 
into  ruins  at  her  magic  touch;  above  all,  let 
not  a  few  forget,  that  Marius  in  exile  sat  on  the 
ruins  of  Carthage;  and  when  these  things  are 
recollected,  let  us  be  humble  in  our  hopes, 
and  temperate  in  our  acts.  In  passing  this 
bill,  gentlemen  may  triumph  over  the  judges; 
but  it  will  be  a  poor  triumph;  it  will  be  a  tri 
umph  over  virtue — over  the  most  consecrated 
principles— over  the  constitution.  It  will  be 
the  triumph  of  force  over  weakness — a  tri 
umph  over  the  people — over  ourselves  and  our 
children;  a  triumph  over  the  feelings  and 
rights  of  old  men,  grown  grey  in  the  honest 
service  of  their  country — and  over  the  feelings 
of  their  anxious  wives  and  children.  Nero 
had  such  a  triumph;  he  wantoned  on  the  harp 
on  the  housetops,  when  by  his  own  incendiary 
hand  Rome  was  wrapped  in  flames.  The 
cries  of  the  murdered  Christians  were  music 
to  his  ears.  Let  us  never  enjoy  such  a  tri 
umph  as  this — such  a  victory  would  be  our 
worst  defeat.  Let  us  pause  bttfore  we  cross  the 
Rubicon.  Let  us  appeal  solemnly  to  our  con 
sciences,  before  we  thus  sacrilegiously  invade 
the  temple  of  our  liberties — before  we  profane 
its  altar  of  justice.  We  have  Sampson's 
strength:  we  can  shake — we  can  even  pull 
down  the  Doric  pillar  of  the  political  edifice; 
but  let  us  be  careful,  lest  we  are  crushed  in  its 
ruins. 

Mr.  Robertson  said,  that  in  the  argument 
which  he  should  submit  to  the  house,  he  should 
endeavor  to  maintain  two  propositions — 1st. 
That  if  it  is  intended  by  this  bill  to  legislate 
the  judges  from  office,  the  end  is  unconstitu 
tional;  and  2nd,  that  it  is  unjust  and  impolitic. 
But  before  he  proceeded  with  the  argument, 
ho  would  answer  some  preliminary  objections 
to  the  judges,  which  had  been  urged  against 
them,  and  which,  although  they  could  not  ba 
made  to  apply  justly  to  the  main  object,  he 
deemed  it  proper  to  notice  and  get  rid  of.  It 
had  been  urged  as  an  objection  to  the  judges, 
that  they  had  not  manifested  sufficient  respect 
to  public  sentiment,  by  holding  their  offices, 
when  they  could  not  doubt  that  a  majority  of 
the  people  had  expressed  dissatisfaction  with 
their  decision  in  the  case  of  BLair  vs.  Wil 
liams.  He  said,  that  he  would  deny  that 
there  was  any  satisfactory  evidence  that  a  ma 
jority  of  the  people  were  or  are  dissatisfied 
with  that  decision.  Great  exertions  had  been 
made  to  excite  the  prejudices  of  the  people 
against  the  judges;  and  nothing  which  inge 
nuity  could  contrive,  and  falsehood  utter, 
was  omitted  to  be  published  against  the  court; 
motives  and  doctrines  had  been  imputed  to 
them,  which  those  who  were  most  active  in 
their  propagation  knew  were  false;  and  a  very 
dexterous  and  unjust  use  was  made  of  epithets 
to  rouse  popular  indignation,  and  to  misdirect 
the  honest  zeal  of  unsuspecting  and  patri 
otic  men.  Those  who  defended  the  consti- 


SPEECH  OF  MR.  ROBERTSON,  ON  THE 


tution  were  denounced  as  "aristocrats— "court 
party" — "the  rich  and  well  born" — "Shy- 
locks" — and  "silver  heels."  These,  and  many 
other  epithets  as  decent,  were  very  liberally 
applied  to  them.  The  judges  were  called 
"kings" — "usurpers" — -"tyrants" — "the  peo 
ple's  masters,"  tfcc.  &c.  "And  the  people  in 
many  counties  were  told  that  in  the  decision 
of  what  is  called  the  "judge  question,"  they 
would  determine  whether  they  were  freemen 
or  slaves.  In  some  counties,  "liberty  or  slave 
ry"  was  the  watchword  of  party  at  the  polls. 
The  people  were  told,  that  the  judges  had 
denied  to  the  legislature  the  right  to  make 
laws,  and  had  attempted  to  arrogate  to  them  • 
selves  the  exclusive  prerogative  of  wielding 
the  whole  sovereign  power.  They  were  told 
that  the  judges  had  decided,  that  there  is  no 
difference  between  right  and  remedy,  and  that 
the  legislature  cannot  in  any  case  change,  or 
in  any  degree  or  for  any  purpose  alter,  or  mod 
ify  the  remedy  for  the  enforcement  of  antece 
dent  contracts;  and  that  this  decision  pros 
trated  state  rights,  and  struck  at  the  very  root 
of  civil  libert  j .  These,  and  many  other  fabri 
cations,  were  industriously  circulated,  to  de 
ceive  and  inflame;  and  many  honest  men  be 
lieved  all  to  be  true,  and  consequently  were  ar 
rayed  against  the  court.  But,  undeceive  the 
people:  tell  them  honestly  what  the  judges 
have  done;  what  it  was  their  right  and  duty  to 
do;  and  who  they  are,  and  who  are  some  of 
their  prosecutors,  and  there  can  be  no  doubt 
that  a  majority  of  the  honest  yeomanry,  who 
are  called  "judge  breakers,"  will  desert  the 
cause  into  which  they  have  been  seduced,  and 
rally  round  the  standard  of  their  constitution, 
and  sustain  and  applaud  their  judges,  who  are 
persecuted,  slandered  and  proscribed,  because 
they  are  honest,  firm  and  virtuous,  and  have 
dared  to  defend  the  poor  man's  rights  in  defi 
ance  of  the  threats  of  the  powerful.  Tell  them 
that  the  court  had  the  right  to  decide  on  the 
constitutionality  of  the  acts  of  the  legislature, 
and  that  they  are  sworn  to  do  so;  and  then 
let  them  know  that  all  the  court  has  done,  was 
to  decide  that  men  must  pay  their  honest 
debts,  according  to  law  and  to  contract,  and 
that  any  attempt  by  the  legislature,  to  prevent 
it,  is  prohibited  by  the  constitution;  and  you 
will  then  be  told,  by  an  honest  and  high-mind 
ed  community,  that  the  judges  deserve  appro 
bation  ;  and  that  those  who  denounced  them 
for  having  done  their  duty,  are  the  enemies  of 
the  people.  He  said  that  he  believed  that  a 
majority  of  the  people  who  are  opposed  to  the 
judges,  are  opposed  to  them,  not  for  the  princi 
ples  which  they  had  decided,  but  because  they 
do  not  know  that  they  have  the  right  to  pro 
nounce  a  legislative  act  unconstitutional.  Let 
this  legislature  tell  them,  as  it  ought  to  do,  that 
the  courts  have  this  right,  and  that  it  is  their 
official  duty  to  exercise  it,  when  properly 
called  on;  and  they  will  tell  you,  that  you  sur 
render  the  contest,  and  that  they  have  been 
grossly  deceived.  And  although  none  of  those 
who  here  denounce  the  Court  of  Appeals  can 
deny,  that  in  giving  the  decision  so  much  com 
plained  of,  there  naf  been  no  usurpation  of 


power,  yet  artifices  were  used  to  conceal  this 
important  truth  from  the  people.  He  said, 
that  he  moreover  did  not  doubt,  that  a  majori 
ty  of  those  who  are  called  "judge  breakers," 
had  never  read  the  opinion  of  the  court;  and 
that  nineteen-twentieths  of  them  had  not 
carefully  examined  it.  How  was  it  possible, 
then,  for  them  to  know  whether  it  is  correct  or 
not?  Is  it  fair  then  to  argue  that  a  majority 
of  the  people,  understanding  the  subject,  are 
deliberately  of  the  opinion,  that  the  court  has 
given  an  erroneous  opinion,  and  that  it  has 
been  guilty  of  usurpation. 

The  fact  that  a  majority  of  the  people  are 
opposed  to  the  court  is  denied.  It  is  very 
doubtful,  whether  the  aggregate  majorities  of 
the  two  parties  in  this  house,  at  the  polls  in 
their  respective  counties,  at  the  last  efection, 
will  not  show  that  the  "judge  breaking"  con 
stituents,  are  the  minority  of  the  state;  and 
hence  those  who  contend  for  the  majority 
against  the  court,  evade  this  calculation,  and 
urge -triumphantly  the  election  of  Gov.  Desha, 
as  a  conclusive  fact.  One  circumstance  will 
show  how  delusory  this  calculation  is: — Our 
present  chief  executive  has  been  electioneering 
for  the  office  which  he  now  holds,  many  years 
— he  has  ridden  over  the  whole  state,  and  has 
become  extensively  acquainted  with  the  peo 
ple;  and  in  some  of  the  most  decidedly  anti-re 
lief  counties  in  the  state,  he  has  obtained  de 
cided  majorities.  He  was  voted  for  by  the 
judge  breakers  and  judge  sustainers — he  was 
so  fortunate  as  to  be  claimed  by  both  parties, 
in  some  counties.  And  sir,  said  Mr.  Robert 
son,  I  do  know,  and  can  prove,  that  in  more 
counties  than  one,  he  declared  publicly,  that  he 
was  "not  in  favor  of  removing  a  judge  from 
office  for  an  honest  opinion" — that  he  had  "ever 
been  Opposed  to  the  relief  system" — and  be 
lieved  "it,  or  at  least  some  paits  of  it,  to  be 
unconstitutional!"  With  these  facts,  let  gen 
tlemen  still  insist,  if  they  will  venture  to  do  it, 
that  the  governor's  election  proves  any  thing 
on  this  subject. 

But  if  it  be  established,  that  the  majority  is 
against  the  judges,  they  ought  not  to  have  re 
signed;  they  would  have  been  guilty  of  a  pu 
sillanimous  desertion  of  their  posts,  and  a  cul 
pable  dereliction  of  their  duty  to  the  constitu 
tion,  to  have  retired.  The  constitution  has 
wisely  required  the  concurrence  of  TWO-THIRDS, 
to  remove  the  judges  from  office.  If  a  bare 
majority  can,  by  abuse  and  threats,  effect  the 
object,  the  intention  of  the  constitution  is  frus 
trated,  and  this  wise  requisition  is  virtually 
and  practically  abrogated.  And  the  example 
once  set,  two-thirds  would  never  afterward* 
become  necessary;  but  the  same  end  would  be 
effected  by  a  simple  majority,  who  would  con 
trol  and  subjugate  the  judiciary,  in  subservi 
ence  to  their  pride  or  ambition.  For  the  pur 
pose  of  sustaining  the  constitution,  then,  it 
was  the  duty  of  the  judges  to  retain  their  of 
fices,  until  they  should  be  constitutionally  re 
moved.  And  if  it  had  been  otherwise  proper 
for  them  to  resign,  they  have  been  so  much 
cibused  and  threatened,  that  they  could  not 
have  resigned  honorably;  because  they  would 


BILL  TO  RE-ORGANIZE  THE  COURT  OF  APPEALS.  79 

not  have  had  the  merit  of  having  done  itvolun-  'measure,  not  so  well  skilled  in  the  artifices  of 


tarily.  Their  resignation  would  have  been 
considered  an  acknowledgment  of  the  errone- 
ousness  of  their  decision,  and  of  their  want  of 
that  degree  of  energy  which  the  judiciary 
should  possess  and^display.  These,  and  these 
only,  are  the  reasons  which  influenced  their 
conduct.  They  do  not  desire  their  offices;  they 


legislation,  really  believe  that  this  bill  is  to 
have  the  magic  effect  of  repealing  the  consti 
tution,  and  by  the  legerdemain  of  a  bare  ma 
jority,  remove  the  judges.  This  discrepancy 
only  shows  how  illicit  is  the  real  design,  and 
how  ridiculous  are  the  subterfuges  of  those 
who  are  the  main  promoters  of  this  new 


would  gladly  give  them  up,  if  they  were  per-  'judge  breaking  expedient;  and  tends  to  prove 
mitted  to  do  so  honorably,  and  consistently  j  that  those  master  spirits  out  of  this  house,  who 
with  their  duties  to  the  constitution,  and  the  ;have  been  charged  with  writing  this  bill,  and 
people's  rights.  I  making  speeches  in  their  caucus,  to  prove  that 

They  have,  therefoiv,  as  they  should  have  jit  is  constitutional,  are  endeavoring  to  dupe 
done,  "nailed  the  flag  to  the  staff,"  and  deter-  others,  and  induce  them  to  do  that,  which  they 
mined  never  to  "give  up  the  ship:"  and  for  this  would  not  dare  to  do  themselves,  if  they  were 
they  deserve  applause;  like  the  old  Roman  \  here.  If  the  object  to  be  accomplished  by  this 
senators,  when  their  capitol  was  attacked  by  j  bill  be  fair  and  constitutional,  why  not  dis- 
barbarians,  it  was  their  duty  to  forego  all  per- !  close  it?  If  it  be  to  add  a  fourth  judge,  we  do 
sonal  considerations,  and  resolve  either  to  save  j  not  object  to  it — but  then  one  clause  will  effect 
the  sanctuary  from  pollution,  or  perish  on  its  !  that  purpose  as  well  as  this  long  bill.  If  it  be 
altar.  to  add  four  new  judges  to  the  court,  making  it 

It  is  also  objected  to  the  judges,  that  they  I  consist  of  seven,, we  do  object;  because  it  will 
have  pertinaciously  adhered  to  their  decision,  be  an  unnecessary  multiplication  of  judges, 
in  contempt  of  the  will  of  the  majority.  He  j  arid  an  oppressive  increase  of  public  oxpendi- 
who  makes  this  objection  should  not  claim  turo.  But  with  all  its  disguises,  it  is  evident 
much  respect  for  the  strength  of  his  mind,  or  that  the  sole  object  of  the  bill  is  to  put  one  set 
the  soundness  of  his  heart.  What!  require  a  of  judges  out  of  office,  and  put  another  set  in 
judge  to  prostitute  his  judgment,  his  con- j  office.  This  is  palpably  unconstitutional — and 
science,  and  his  oath,  at  the  shrine  of  popular- !  will  not,  cannot,  be  sanctioned  by  the  people-, 
ity,  and  bow  to  the  nod  of  the  leader  of  a  dont-  j  If  the  majority  desire  to  prostrate  the  judiciary , 
inant  party?  to  change  his  decision,  whilst  his  j  they  must  rosort  to  other  and  stronger  meas- 
opinion  is  the  same?  Such  a  judge  would  be  a  jurcs.  Let  them  conic  out  boldly,  and  openly 
curse  to  society — a  monster  oil  the  bench — the  !  defy  the  constitution  at  once,  "and  appeal  to 
minister  of  vengeance,  and  not  of  justice — the  j  numerical  power— to  physical  force — which 
puppet  of  party — tlu-  mighty  engine  of  power '  has  been  hinted  at  more  than  once,  and  which 
— and  not  the  weak  man's  stay/  or  the  poor  \  is  tho  "ultima  ratio  regis,"  and  the  ultimate  and 
man's  hope — the  supporter  of  innocence — the  [only  argument  which  can  enforce  the  objects 
terror  of  vice.  It  is  acknowledged  that  the!  of  this  bill.  They  have  waged  along  and  vio- 
judges  of  the  Court  of  Appeals  arc  not  such  ;  lent  war  of  words  against  the  judges;  and  bv 
compliant,  subservient  tools  of  faction:  they] their  conduct,  acknowledged  that  they  could 
are  virtuous,  firm,  honest,  and  enlightened  [only  remove  them  from  office  by  a  majority  of 
men.  This  is  their  crime — "the  head  and  ; two-thirds.  They  have  tried  them  according 
front  of  their  offending."  They  do  not,  like  |  to  the  constitution — they  have  failed — and  now 
some  of  us,  change  \vitli  the  fluctuations  of  ma-  j  to  cover  their  defeat,  as  they  cannot  "break" 
jorities.  They  are  not  so  felicitous,  like  some  j  the  judges,  they  are  endeavoring  to  "break"  the 
others,  as  to  be  always  on  the  strong  side;  their  i  constitution.  Desperate  must  be  that  party, 
only  power  is  the  power  of  judgment;  their  on- land  dangerous  to  the  liberties  of  the  people, 
ly  support  i-?  the  ability  of  their  decisions.!  when  they  can  prostitute  their  power  to  such 
They  do  not,  as  oziers,  bend  at  every  breeze;! unhallowed  ends.  The  party  has  been  strug- 
but  like  the  sturdy  oaks  of  the-  forest,  they  Jgling  to  remove  the  judges  from  office;  but  thev 
stand  firm  and  erect,  unshaken  by  the  storms  nave  now  discovered  a  new  expedient,  by 
of  party.  Such  udges  do  not  suit  the-  ambi- 1  which  they  can  remove  the  office  from  the 
tious  and  the  p 
people's  judges 
said  he,  are  our  judges.  ;  2nd.  The  incumbent  appointed  to  fill  it.  If  the 

In  proceeding  to  speak  of  the  bill,  Mr.  Rob- :  legislature  intenel  to  act  on  the  incumbent,  for 
ertson  said  he  had  some  difficulty  in  deter-  actual  or  imputed  misconduct,  they  are  re- 


r.  Such  judges  do  not.  suit  the  ambi- (which  they  can  remove  the  office  from  the 
d  the  powerful;  but  such  should  be  the !  judges!  Two  things  are  necessary  to  the  ten- 
i  judges — and  such,  I  am  proud  to  sav,  j  ure  of  office — 1st.  The  existence  of  the  office. 


mining  its  real  character;  it  was  a  sort  of  non 
descript;  its  like  had  never  been  seen  before. 
Some  of  its  prominent  friends,  even  the  gentle 
man  who  presented  it,  denied  that  its  object  is 
to  remove  the  judges  from  office.  They  ad 
mit,  because  they  are  compelled  to  admit,  that 
the  only  legitimate  effect  of  the  bill  will  be  to 
add  four  new  judges  to  the  bench,  making  the 
total  number  seven,  instead  of  three;  but  say 
that  they  will  give  the  present  judges  no  sala 
ry,  and  this  they  have  no  doubt  will  induce 
them  to  resign.  Whilst  other  advocates  of  the 


quired  by  the  constitution,  to  proceed  either 
by  impeachment  or  address — to  succeed  in 
either  of  which,  two-thirds  are  necessary. 
These  are  the  only  modes  by  which  the  judges 
can  be  removed.  If  the  office  become  unneces 
sary  or  inconvenient,  and  the  public  good  re 
quire  its  abolition,  it  may  be  abolished,  (if  cre 
ated  by  law)  not  for  the  purpose  of  displacing 
the  incumbent,  but  only  to  substitute,  in  good 
faith,  a  better  system.  And  as  the  latter  is  to 
be  effected  by  law,  a  bare  majority  is  sufficient. 
But  although  the  office  may  have  been  created 


SPEECH  OF  MR.  ROBERTSON,  ON  THE 


or  established  by  law,  and  therefore  can  be  re 
pealed  by  law,  yet  if  the  object  be  to  remove 
the  officer,  and  not  to  abolish  the  office,  it  is 
unconstitutional.  The  object  of  this  bill  is  not 
to  abolish  the  court  of  appeals — that  is  not  at 
tempted,  and  could  not  be  done;  because  it  is 
established,  'not  by  law,  but  by  the  constitu 
tion.  The  plain  and  sole  object  is,  to  endeav 
or  to  remove  the  judges  by  an  act  of  assembly. 
This  is  constitutionally  impossible.  The  con 
stitution  declares,  that  "the  judicial  power  of 
this  commonwealth  shall  be  vested  in  one  su 
preme  court,  to  be  styled  the  court  of  appeals; 
and  in  such  inferior  courts  as  the  legislature 
may,  from  time  to  time,  erect  and  establish." 
It  also  declares,  that  the  judges  shall  hold  their 
offices  during  good  behavior,  and  the  continu 
ance  of  their  courts.  If  the  cc-urt  of  appeal 


ganization.  Bu&  if,  by  a  repeal  of  the  laws  au 
thorizing  and  regulating  the  election,  the  gov 
ernor  cannot  be  legislated  out  of  office;  by  a 
parity  of  reason,  by  a  repeal  of  the  act  regu 
lating  the  court,  the  tenure  of  the  judges'  of 
fice  is  not  affected:  the  office  cannot  be  abol 
ished,  in  either  case,  and  the  reason  is  obvi 
ous — it  is  because  the  law  does  not  create  the 
office,  but  only  provides  the  means  whereby  it 
may  be  filled.  The  heads  of  the  three  great 
departments  are  as  fixed  as  the  constitution. — 
In  the  case  of  the  judges,  the  constitution  pro 
vides  that  they  shall  hold  their  offices  (unless 
removed  by  two-thirds)  during  the  continu 
ance  of  their  court,  and  not  during  the  exist 
ence  of  the  law  or  laws  providing  for  filling 
the  court  with  judges;  consequently  it  fol 
lows  logically  and  irrefragably,  that  a  repeal 


is  established  by  the  constitution,  and  must  ex-  of  such  a  law  or  laws,  cannot  have  the  slight- 
ist  as  long  as  that  shall  exist,  the  conclusion  jest  effect  on  the  judges;  they  are,  notwith- 
is  inevitable,  that  the  judges  of  that  court  can-  ing,  still  in  office,  because  their  court  still  ex- 
not  be  removed  by  a  legislative  act.  Their  !  ists,and  cannot  be  abolished  by  law. 
tenure  of  office  depends  only  on  the  contingcn-  But  from  the  words,  "from  time  to  time  shall 
cy  of  good  behavior;  and  they  can  be  removed  j  erect  aud  establish,"  it  has  been  argued,  with 
only  for  misbehavior.  The  office  can  only  be  j  as  much  vehemence  as  if  there  were  plausi- 
abolished  by  a  convention.  jbility  in  the  idea,  that  the  court  of  appeals,  as 

That  the  office  is  created  by  the  constitu-  j  well  as  the  inferior  courts,  is  established  by 
tion,  and  is  not  repealable  by  law,  is  demon-  jlaw.  A  slight  attention  to  juxtaposition,  and 
strable  by  the  constitution  itself — and  may  al-  { to  grammatical  construction,  will  show  the  fal- 
so  be  shewn  by  an  examination  of  the  author-  lacy  of  this  argument,  independently  of  the 
ities  and  examples  quoted  by  the  advocates  of  conclusive  considerations  already  suggested. — 
the  bill,  in  its  support.  And  if  I  do  not  (said  {  The  words,  "erect  and  establish,"  refer  evi- 
he)  shew  even  to  those  gentlemen,  to  their  ut-  i  dently  to  the  inferior  courts:  a  transposition 
ter  confusion  and  clear  conviction,  that  their  will  shew  it-  "The  judicial  power  shall  be 
own  cases  prove  the  unconstitutionally  of  i  vested  in  a  supreme  court—- which  the  legisla- 
legislating  judges  of  the  supreme  court  out  of  i  ture  may  from  time  to  time  erect  and  estab- 
officc,  I  will  surrender  the  argument.  lish,"  would  be  very  nonsensical  language. — 

The  government  is  divided  into  three  dis-  The  meaning  of  the  clause  is,  that  there  shall 
tinct  departments — the  legislative,  the  execu- }  be  a  court  of  appeals;  and  that  in  addition, 
live,  and  judicial — and  its  powers  are  distribu-  j  there  MAY  be  sucn  other  courts  as  the  legisla 
ted  among  them.  If  either  department  be  ta-  j  ture  may  establish.  There  never  can  be  an  in- 
3cen  away,  the  constitution  loses  its  eqnilibri-  i  stant  when  there  is  no  court  of  appeals,  the 
um  and  its  vitality;  each  is  created  by  the  con-  constitution  living.  This  is  too  plain  to  de 
stitution,  and  one  as  much  so  as  either  of  the  serve  argument. 
other  two.  The  law  does  not  create  the  court  of  appeals; 


Is  the  executive  department  established  by  j  it  only  provides  means  to  create  the  judges  of 
The  advocates  of  this  bill  that  court;  and  whenever  they  arecommission- 


the  constitution? 


admit  that  it  is.  Then  must  not  the  legislative 
and  judicial  be  also  established  by  the  same  in 
strument,  and  the  same  authority — the  people 
in  their  primordial  assembly?  The  constitu 
tion  declares  that  "the  executive  power  shall 
be  vested  in  a  chief  magistrate,  to  be  styled," 
<tc.  The  same  constitution  declares,  "that  the 
judicial  power  shall  be  vested  in  a  supreme 
court,  to  be  styled,"  (fee.  The  language  is  pre 
cisely  the  same:  it  must  therefore,  when  used 
in  the  latter,  mean  the  same  thing  as  when 
used  in  the  former  clause:  it  establishes  the  ex 
ecutive  in  the  former;  therefore  it  establishes 
the  court  of  appeals  in  the  latter.  The  office 
of  the  executive  is  created  by  the  constitution, 

although  it  is  vacant  until  a  governor  is  elect-  [judges  are  commissioned,  they   are  judges  of 
ed.     So  the  court  of  appeals  is  established  by  ^ 
the  constitution,  although  the  judges  do  not 
exist  until  commissioned,     f-aws  are  necessary 


ed,  like  the  governor  and  members  of  the  leg 
islature,  they  are  in  office  under  the  constitu 
tion. 

Can  the  court  of  appeals  be  abolished?  Ev 
ery  member  of  the  house,  and  of  the  communi 
ty,  will  answer,  no.  Why  can  it  not  be  abol 
ished  by  law,  if  established  by  law?  If  it 
were  established  by  law,  the  same  authority 
which  created,  could  destroy  it.  But  it  can 
not  be  abolished  by  act  of  assembly,  because 
the  constitution  declares  that  there  shall  be  a 
court  of  appeals :  and  therefore  it  is  established 
by  the  constitution.  Although  all  the  judges 
may  die  or  resign,  still  there  is  a  court  of  ap 
peals;  the  office  still  exists;  and  when  new 


in  the  first  case,  to  provide  for  the  election  of 
a  governor:  so  in  the  latter  to  prescribe  the  ju 
risdiction  of  the  court,,  and  provide  for  its  or- 


the  same  court  of  appeals,  although  they  are 
not  the  same  men.  The  legislature,  therefore, 
cannot  abolish  the  court;  they  cannot  take  the 
office  from  the  judges:  and  as  the  only  consti 
tutional  modes  of  removing  them  from  office 
are  impeachment  and  address,  this  bill  cannot 


TO  RE-ORGAtfl£E  THE  OOtTRT  OF  APPEALS, 


31 


have  the  effect   of  removing  the  judges  from 
office  constitutionally. 
But  if  stronger  or  more  direct  authority  can 


permitted  by  the  constitution;  and  any  attempt 
to  produce  it  is  therefore  unconstitutional, 
if  you  pass  your  bill,  have  you  not  still  a 


be  necessary  to  place  this  .subject  beyond  even  |  court  of  appeals?  Is  it  not  the  same  court  of 
the  hesitancy  of  skepticism,  the  debates  on  the  appeals  as  that  which  has  existed  ever 
judiciary  bill  in  congress,  in  1823,  which  have  j  since  the  adoption  of  the  constitution?  If  it 
been  quoted  by  the  advocates  of  the  bill,  to  j  still  be  the  court  of  appeals— if  the  court  still 
prove  its  constitutionality,  will  furnish  appo- i  continue,  the  judges  are  still  in  office;  be- 
site  and  imposing  arguments,  to  shew  that  the  cause  they  hold  their  offices  during  the  coii- 
court  of  appeals  is  a  constitutional  court,  and  tinuance  of  their  court.  It  is  admitted  by 
cannot  be  abolished  or  discontinued  by  legis 
lation.  The  question  under  discussion  in  con 


gress,  was  whether  the  inferior  courts  estab 
lished  at  the  close  of  Mr.  Adams'  administra 
tion,  could  be  abolished  by  a  repealing  act. — 
It  was  contended  by  those  who  denied  the 
power  of  congress  to  abolish  the  inferior  courts, 


some  of  those  who  will  vote  for  the  bill,  that 
the  judges  will  be  in  office,  ifth«  bill  pass; 
but  they  say  that  they  shall  serve  without  sal 
ary.  They"  intend  to  have  four  judges  well 
paid,  and  three,  who  shall  have  nothing  for 
their  services .  The  constitution  provides  that 
the  judges  shall  have  adequate  salaries.  Can 


L/U>>  CI     Ul  V^Uiitil  COO    l\J  CVLJVM.lo.LI.    CU.U  1111UI  AL>1    *_>L/U1  UOj    J   i.U.V*    JCI\.*.^OO    OJ.x<*AJ.    J-i-t*.  T  \s    wi*-<_.i£  ww  ^      WHMAWK 

that  the  supreme  court  could  not  be  abolished,  |  any  one,  on  his  oath,  say  that  nothing 
because  it  was  ordained  or  established  by  the  j  adequate  salary?    This  subterfuge  is  too  glar- 
constitution;  and  that  the  inferior  courts,  by  j  ing  an  abuse  of  discretion   to  escape  public 


analogy,  when  once  in  existence,  became  con 
stitutional  courts,  and  could  not  be  abolished. 
The  argument  was  able  and  ingenious;  and 
the  advocates  of  the  bill  conceded  that  the  su 
preme  court  could  not  be  abolished  by  law; 
but  they  denied  that  the  analogy  which  had 
been  contended  for  existed  between  the  origin 
of  the  supreme  and  inferior  courts  by  law:  and 
that,  as  the  same  power  that  enacted  the  crea 
tive  law  could  repeal  it,  the  inferior  courts 
could  be  abolished:  and  they  were  abolished. 
Every  member,  on  each  side,  admitted  that  the 
supreme  court  could  not  be  abolished  by  law: 
and  the  volume  of  debates  which  I  hold  in 
my  hand,  (said  he)  will  prove  it,  if  denied. — 
The  authority  of  Mr.  Jefferson  and  the  repub 
licans  of  1802  is  not  in  support  of  this  bill,  but 
most  undeniably  and  conclusively  against  it. 
For  let  it  not  be  forgotten,  that  the  clause  of  the 
federal  constitution,  providing  for  a  supreme 
court  and  such  inferior  courts  as  may  be  es 
tablished,  is  in  the  same  language  as  that 
which  has  been  quoted  as  to  our  courts,  from 
our  state  constitution:  and  therefore,  if  the  su 
preme  court  could  not  be  abolished,  or  "reor 
ganized,"  so  as  to  get  rid  of  the  judges,  because 
that  court  was  established  by  the  constitution, 
for  the  very  same  reason,  the  court  of  appeals 
cannot  be  abolished,  or  so  ' Reorganized,"  as  to 
remove  the  judges.  It  was  not  to  have  been 
expected  that  gentlemen,  who  advocate  this 
bill,  would  be  so  bold  as  to  call  to  their  aid, 
Mr.  Jefferson  and  the  republican  party  of  1802; 
when  their  authority  is  so  explicit  and  unani 
mous  against  the  power  to  abolish  courts  estab 
lished  by  the  constitution,  as  are  the  supreme 
court  and  the  court  of  appeals.  What  would 
be  thought  of  a  member  of  congress,  who,  for 
the  purpose  of  removing  the  judges  of  the  su 
preme  court,  should  introduce  ^a  bill  in  con 


gress,  to  reorganize  the  supreme  court  ?  The  act 
would  stultify  him.  The  law  organizing  the 
court  could  be  repealed;  but  the  effect  would 
not  be  a  removal  of  the  judges;  the  supreme 
court  would  still  exist,  and  the  judges  would 
still  be  judges. 

The  Kentucky  act  of  '96,  reorganizing  or  re 
establishing  the  court  of  appeals,  did  not  turn 
the  judges  out  of  office:  such  an  effect  is  not 


reprehension. 

If  the  legislature  had  the  power  to  abolish 
the  court,  the  bill  does  not  do  it;  because  ;i 
court  is  "organized"'  in  the  same  bill;  and  the 
existence  of  the  court  is  not  suspended  for  one 
moment. 

An  additional  consideration  to  shew  that 
the  bill  can  have  no  tendency  to  abolish  the 
court  would  appear  by  a  change  of  the  title, 
so  as  to  correspond  with  such  object.  Let  it 
read,  "A  bill  to  abolish  the  court  of  appeals," 
and  who  is  there  so  bold,  as  not  to  admit  that 
it  would  be  nugatory?  And  yet  that,  should 
be  its  title;  for  such  is  its  true  character,  and 
such  its  design. 

But  it  is  contended  that  the  court  of  appeals 
has  never  been  established!  This  is  one  of 
the  arguments  used  by  the  caucus  orators;  and 
shows  how  desperate  'is  the  cause,  which  must 
be  sustained  by  such  a  ridiculous  resource.— 
I  would  be  glad  (said  he)  that  those  speakers 
had  been  invited  to  make  their  speeches  at  the 
bar  of  the  house,  that  they  might  be  answered , 
and  exposed:  they  would  not  venture  to  make 
such  an  argument  here,  and  would  not  dare  to 
vote  for  this  bill,  if  they  were  entitled  to  vote. 
The  argument  has  been  answered  in  the  en 
deavor  to  shew  that  the  court  has  been  estab 
lished  by  the  constitution;  and  may  be  far 
ther  answered  by  a  plain  question:  Has  Ken- 
I  tacky  never  had  a  court  of  Appeals? 

It  has  been  asked  emphatically,  whether 
j  circuit,  and  other  inferior  courts,  cannot  be, 
abrogated  by  law?  The  answer  is,  yes,  certain 
ly,  because  they  are  established  by  law.  But 
the  legislature  has  not  the  right  to  abolish  and 
re-create.,  simultaneously,  the  circuit  courts.  If 
those  courts  become  inconvenient — to  improve 
the  system  by  substituting  other  courts,  or  re 
modeling  them— the  legislature  may  j)ass  a  law 
abolishing  or  modifying  them:  but  if  the  ob 
ject  be  to  get  clear  of  the  judges  and  not  the 
courts,  it  is  unauthorized,  and  is  an  abuse  of 
power.  And  here  the  debates  on  the  judiciary 
bill  in  congress,  are  direct  and  formidable  au 
thority.  Mr.  Randolph,  who  was  the  leader 
of  the  republican  party,  endeavored  to  prove 
that  congress  possessed  the  right  to  abolish  the 
.inferior  courts,  because  they  were  unnecessary; 


SPEECH  OF  MR  ROBERTbON,  ON   THE 


but  admitted  that,  if  the  object  were,  not  to  get 
rid  of  the  courts,  but  of  the  judges,  the  attempt 
would  be  a  perversion  of  power,  to  an  uncon 
stitutional  end;  and,  in  his;speech  on  that  sub 
ject,  used  the  following  strong  and  explicit 
language:  "1  am  free  to  declare,  that  if  the 
intent  of  this  bill  is,  to  get  rid  of  the  judges, 
it  is  the  perversion  of  jour  power  to  a  base 
purpose;  it  is  an  unconstitutional  act.  If,  on  the 
contrary,  it  aims  not  at  the  displacing  of  one 
set  of  men,  from  whom  you  differ  in  political 
opinion,  with  a  view  to  introduce  others,  but 
at  the  general  good,  by  abolishing  useless  offi 
ces,  it  is  a  constitutional  act.  The  quo  animo 
determines  the  nature  of  the  act,  as  it  deter 
mines  the  guilt  or  innocence  of  other  acts." 

The  object  of  this  bill  is  not  to  substitute  an 
other  and  better  court  for  the  court  of  appeals; 
this  cannot  be  done;  but  the  object  is  to  en 
deavor  to  legislate  the  judges  out  of  office:  and 
if  the  power  existed  to  abolish  the  court,  the 
authority  of  the  republicans  of  1802  in  con 
gress,  proves  that,  to  exercise  it  for  such  a  pur 
pose,  would  be  a  flagrant  violation  of  the  con 
stitution.  The  conclusion  is  fair,  and  cannot 
be  resisted,  that,  in  every  aspect  of  this  bill,  if 
the  object  be  to  remove  the  judges,  itis  uncon 
stitutional. 

If  what  had  been  said  during  the  debate 
would  not  convince  the  friends  of  the  bill 
of  its  inefficacy,  or  unconstitutionally,  I 
doubt  (said  Mr.  R.)  whether  they  would  be 
lieve  "if  one  were  to  rise  from  the  dead"  and 
proclaim  the  truth  in  the  language  of  inspira 
tion.  1  will  close  the  arguments  which  were 
promised  on  the  provisions  of  the  constitu 
tion,  by  propounding  one  question:  If  the 
judges  can  be  removed  by  a  bare  majority,  why 
did  the  convention  require  the  concurrence  oi 
two-thirds?  This  requisition  is  unnecessary 
if  less  than  two-thirds  can  do  what  it  requires 
two-thirds  to  effect.  And  if  a  majority  of  two- 
thirds  can  be  dispensed  with,  why  have  such 
efforts  been  made  for  more  than  a  year  to  ob 
tain  that  majority?  The  answer  is,  that  two- 
thirds  are  indispensably  necessary.  And  the 
advocates  of  the  bill  knew  it,  or  they  would 
have  made  the  effort  which  they  are  now 
making,  at  the  last  session  of  the  legislature 
Congress,  although  desirous  of  removing  Chase 
from  office,  never  attempted  it  by  "a  re-organi 
zation"  of  the  supreme  court;  they^  admittec 
that  he  could  not  be  removed  by  this  misera 
ble  expedient:  they  tried  him  openly  by  ira 
peachment,  and  failing  in  that,  liberated  him 
trom  further  prosecution.  The  Virginian  ex 
ample  is  as  unfortunate  for  the  advocates  o 
this  bill,  as  that  of  the  republicans  in  1802 
In  Virginia,  an  act  was  passed,  the  effect  o 
which,  if  acquiesced  in,  would  have  been  t.< 
change  the  judges  of  the  court  of  appeals:  bu 
the  judges  having  resisted  it,  the  legislature 
submitted,  and  thereby  acknowledged  tha 
they  did  not  possess  the  power  to  remove 
the  judges  by  act  of  assembly.  Thus  not  on 
ly  the  constitution,  but  the  authority  of  the  re 
publican  party  in  1802,  and  of  Virginia,  isde 
cisively  opposed  to  this  bill.  It  is  certainb 


without  precedent  in  the  annals  of  anyconsti- 
itional  government. 

If  it  be  necessary  to  fortify  this  argument 
y  bringing  to  its  aid  the  principles  of  the  gov- 
rnment,  it  will  be  quite  easy  to  shew  that  the 
ight  to  legislate  the  judges  of  the  court  of  ap- 
eals  from  the  bench  while  the  court  exists,  is 
epugnant  to  the  theory,  and  subversive  of  the 
nds  of  the  constitution. 

The  government  of  Kentucky  is  limited; 
undamental  principles  are  established  by  the 
onstitution,  which  are  beyond  the  power  of 
egislation;  and  the  powers 'of  government  are 
istributed  among  the  three  great  departments, 
n  such  a  manner  as  that  each  may  operate  as 
i check  upon  the  others,  and  thereby  produce 
an  equilibrium.  The  third  department,  the 
udiciary,  is  necessary  in  every  free  govern- 
nent,  to  preserve  the  balance  of  power,  pre 
vent  a  dangerous  concentration  in  either  ot  the 
)thers,  and  to  enforce  the  limitations  of  the  con- 
titution:  this  and  the  representative  princi- 
)le,  are  the  great  discoveries  of  modern  times; 
hey  are  the  vital  principles  of  free  govern 
ment,  and  no  government  can  long  enjoy  free 
dom  which  does  not  adopt  and  adhere  to  them. 
Those  who  adopted  the  American  constitutions 
were  wise  and  good  men;  they  had  read  the 
listories  of  ancient  republics,  and  they  had 
read  the  book  of  human  nature;  and  from  these 
•sources  had  drawn  the  principles  which  they 
lave  incorporated  into  our  constitution.  They 
inew  that,  whilst  it  was  desirable  to  leave 
men  as  free  as  the  common  good  would  allow, 
t  was  equally  necessary  to  secure  them  against 
he  passions'of  our  nature,  and  the  fluctua- 
ions  of  parties.  They  felt  the  necessity  of 
establishing  an  independent  judiciary,  to  pro 
tect  the  weak,  and  poor,  and  obnoxious,  from 
the  injustice  and  oppression  of  the  rich,  the 
strong,  and  the  popular — to  save  minorities 
from  the  tyranny  of  majorities. 

The  right  of  the  majority  to  control  the  mi 
nority  is  derived  from  nature,  and  is  specula- 
tivelyjust  and  unexceptionable;  but  not  al 
ways  practically  proper.  In  regulating  the 
affairs  of  society,  the  majority  has  an  undeni 
able  right  to  control  the  minority,  unless 
when  prohibited  by  the  terms  of  the  social 
compact,  or  the  constitution.  But,  as  in  a  state 
of  nature  the  weak  man  has  no  security  against 
the  violence  of  the  strong,  nor  the  minor 
against  the  unjust  dominion  of  the  major  par 
ty,  it  becomes  necessary  that  government 
should  be  established,  with  such  organization 
as  to  guarantee  the  equal  rights  of  all.  Con 
stitutions  are  made  for  the  weak,  not  the 
strong;  for  minorities,  not  majorities:  majori 
ties  can  protect  themselves.  Hence  the  ne 
cessity  of  adopting  principles  which  even  ma 
jorities  cannot  violate.  It  is  not  only  the  sole 
object,  but  the  essence  of  a  constitution,  that 
the  stronger  man,  and  the  stronger  party,  shall 
be  interdicted  from  encroachment  on  the  guar 
anteed  rights  of  the  weaker  man,  and  the 
weaker  party.  By  what  svstem  of  govern 
ment  this  great  end  could  be  most  certainly 
effected,  without  unnecessarily  impairing  the 
liberty  of  the  people,  hag  been  the  subject  of 


BILL  TO  RE-ORGANIZE  COURT  OF  APPEALS. 


83 


discussion  and  experiment  for  ages;  and  it  has 
been  reserved  for  modern  times  to  discover  the 
secret,  which  is  developed  in  the  American 
constitutions.  In  all  of  them,  the  same  fun 
damental  principles  are  consecrated:  in  all,  we 
seethe  anxiety  of  our  forefathers,  to  establish 
an  independent  judiciary;  this  they  consider 
ed  the  anchor  of  the  constitution.  No  people 
ever  were  long  free  without  such  a  tribunal; 
none  ever  slaves  with  it.  The  factions  of 
Athens  and  of  Rome,  which  so  much  convul 
sed  and  degraded  those  republics,  were  un 
checked,  except  by  their  own  sense  of  justice: 
they  had  no  independent  judiciary,  to  which 
an  exiled  Aristides,  or  persecuted  Miltiades, 
or  a  proscribed  Marcellus,  could  appeal  for  pro 
tection  and  redress;  the  will  of  the  majority  was 
the  supreme  law;  power  was  right.  Persecu 
tion,  proscription,  revolution,  despotism,  and 
all  the  catastrophies  incident  to  the  unrestrict 
ed  licentiousness  of  majorities — always  sub 
servient  to  some  insidious  demagogue,  who 
professed,  like  Marius,  Cassar  and  Pericles,  to 
lone  the  people — were  the  deplorable  consequen 
ces;  until  at  last,  liberty  herself  was  exiled, 
and  her  institutions  demolished,  and  her  cause, 
for  ages,  surrendered  by  her  votaries.  And 
such  must  be  the  fate  in  all  times  and  all  coun 
tries  where  majorities  are  uncontrolled,  flu- 
man  virtue  is  not  a  sufficient  security  for  right 
against  wrong.  Man  is  under  the  dominion  of 
bad  passions,  and  must  be  governed.  Major 
ities  often  err.  It  was  "the  majority"  that 
passed  the  "alien  and  sedition"  laws — It  was 
"the  majority"  that  elevated  Robespierre,  and 
put  down  De  la  Fayette  in  France — It  was 
"the  majority"  that  lighted  up  Smithfield,  in 
England;  and  established  the  Inquisition  and 
Auto-de-fe,  in  Spain — It  was  "the  majority" 
that  drove  Catoto  suicide;  subjected  Socrates 
to  the  hemlock;  and  Aristides  to  ostracism 
— In  fine,  it  was  "the  majority"  that  fcourged 
and  crucified  the  Savior  of  the  world.  And  yet, 
we  have  been  told,  in  a  certain  preamble,  writ 
ten  by  the  gentleman  from  Jefferson,  (Mr.  Row 
an,)  that  "it  is  a  solecism  in  politics,  to  say 
that  the  majority  can  err;"  and  that  "the  mi 
nority  have  no  rights!"  This  is  tho  doctrine 
of  tyranny.  It  was  the  language  of  Julius 
Cresar,  and  of  every  demagogue  who  lias,  by 
•flattery,  seduced  the  people  and  trampled  on 
their  liberties.  It  was  not  tho  language  of  the 
patriots  and  statesmen  of  the  revolution:  the 
language  of  our  Washingtons,  Franklins,  and 
Jeffersons,  was,  that  liberty  without  law,  was 
the  most  intolerable  despotism;  and  that,  to  en 
sure  justice,  and  secure  the  stability  of  free 
government,  an  independent  judiciary  is  in 
dispensably  necessary.  And  this,  too,  is  the 
language  of  the  venerated  DC  la  Fayette,  the 
patriot  of  two  hemispheres,  the  friencl  of  man 
kind. 

It  is  not  necessary  to  read  Thucydides  or  Po- 
lybius  to  learn  the  importance  of  three  coequal, 
co-ordinate  departments;  it  is  demonstrated  by 
the  history  of  England,  and  the  development 
of  its  advantages  in  the  United  States.  The 
sentiments  of  the  most  enlightened  politicians 
of  oxir  country,  shortly  after  the  reyolution, 


are  exhibited  in  the  letters  of  Publius,  written 
by  Hamilton,  Madison  and  Jay;  which  are  con 
sidered  the  highest  authority  in  the  United 
States.  In  page 44,  is  this  language:  "The 
science  of  politics,  like  most  other  sciences, 
has  received  great  improvement.  The  effica 
cy  of  various  principles  is  now  well  under 
stood,  which  were  either  not  known  at  all,  or 
imperfectly  known,  to  the  ancients.  The  reg 
ular  distribution  of  power  into  distinct  de 
partments — the  introduction  of  legislative  bal 
ances,  and  checks — the  institution  of  courts 
composed  of  justices  holding  their  offices  du 
ring  good  behavior,  <fec.,  are  means,  and  pow 
erful  means,  by  which  the  excellencies  of  re 
publican  government  may  be  retained,  and  its 
imperfections  lessened  or  avoided."  In  page 
49:  "Complaints  are  every  where  heard  from 
our  most  considerate  and  virtuous  citizens, 
equally  the  friends  of  public  and  private  faith, 
and  of  public  and  personal  liberty,  that  our 
governments  are  too  unstable;  that  the  public 
good  is  disregarded  in  the  conflicts  of  rival 
parties;  and  that  measures  are  too  often  deci 
ded,  not  according  to  the  rules  of  justice,  and 
the  rights  of  the  minor  party,  but  by  the  su 
perior  force  of  an  interested  and  overwhelming 
majority."  Page  50:  Speaking  of  the  general 
distrust  of  public  engagements,  and  alarm  for 
private  rights,  the  author  says:  "These  must 
be  chiefly,  if  not  wholly,  effects  of  the  unstead 
iness  and  injustice  with  which  a  factious  spir 
it  has  tainted  our  public  administration-  — 
Again:  "By  a  faction,  I  understand  a  number 
of  citizens,  whether  amounting  to  a  majority 
or  minority  of  the  whole,  who  are  united  and 
actuated  by  some  common  impulse  of  passion 
or  interest  adverse  to  the  rights  of  other  citi 
zens,  or  to  the  permanent  or  aggregate  inter 
ests  of  the  community."  Page  52:  "When  a 
majority  is  included  in  a  faction,  the  form  of 
popular  government  enables  it  to  sacrifice  to  its 
ruling  passion  or  interest,  both  the  public 
good  and  the  rights  of  other  citizens.  To  se 
cure  the  public  good  and  private  rights  against 
such  a  faction,  and  at  the  same  time  preserve 
the  spirit  and  form  of  popular  government,  is 
the  great  desideratum  by  which  alone  this 
form  of  government  can  'be  rescued  from  the 
opprobium  under  which  it  has  so  long  labored, 
and  be  recommended  to  the  esteem  and  adop- 
cion  of  mankind."  In  page  53,  after  speaking 
of  a  democracy  where  the  majority  governs 
without  the  check  of  an  intermediate  power, 
;;he  author  says:  "There  is  nothing  to  check 
the  inducements  to  sacrifice  the  weaker  party, 
or  an  obnoxious  individual.  Hence  it  is,  that 
such  democracies  have  ever  been  spectacles  of 
turbulence  and  contention:  have  ever  been 
found  incompatible  with  personal  security,  or 
the  rights  of  property;  and  have  in  general, 
been  as  short  in  their  lives,  as  they  have  been 
violent  in  their  deaths." 

These  extracts  shew,  in  strong  and  vivid 
colors,  the  value  of  a  constitution  which  lim 
its  the  power  of  the  majority  over  the  rights  of 
the  minority.  A  constitution  is  a  covenant,  or 
contract,  between  those  who  make  it  and  for 
whom  it  is  wade:  its  limitations  and  guaran. 


SPEECH  OF  MR.  ROBERTSOK  ON  TEE 


tees  are  intended  to  "protect  each  from  the 
the  aggression  of  others,  or  of  all  united;  to  se 
cure  equal  right  to  life,  liberty  and  property  to 
the  weakest,  poorest  and  humblest  citizen. — 
Our  constitution  declares  that  the  habeas  cor 
pus  shall  not  be  suspended  in  time  of  peace 
that  the  liberty  of  speech  and  of  conscience 
shall  be  held  inviolate:  that  no  man  shall  be 
punished  without  a  fair  trial  by  his  peers:  that 
trial  by  jury  shall  be  preserved ,  <fcc.,  ifcc.  This 
is  all  beautiful  in  theory;  but  it  is  in  practice, 
a  delusion,  unless  some  power  exist,  indepen 
dent  of  the  majority,  to  defend  those  sacred 
rights  from  violation  by  the  majority — to  whom 
alone  the  prohibitions  of  the  constitution  are 
addressed.  The  humble  individual  would  act 
very  unwisely,  to  give  up  his  natural  liberty, 
and  enter  into  a  political  compact  with  others 
more  powerful  than  -himself,  unless  he  could 
have  some  security  from  the  tyranny  of  a  major 
ity.  The  guarantees  in  his  favor  would  be  only 
nominal,  unless  some  umpire  should  be  created, 
with  the  capacity  to  decide  between  him  and  a 
tyrannical  majority,  who  may  encroach  on  his 
rights,  disregarding  the  compact.  The  history 
of  the  world  proves  that  no  tribunal  can  accom 
plish  this  object  so  well  as  an  independent  ju 
diciary;  it  is  the  best  safeguard  against  the  op 
pression  of  the  tyrant,  and  the  passions  of  the 
multitude.  The  authors  of  Publius,  on  this  sub 
ject,  page  419,  say  that,  "In  a  monarchy,  it  is 
an  excellent  barrier  to  the  despotism  of  the 
prince;  in  a  republic,  it  is  a  no  less  excellent 
barrier  to  the  encroachments  and  oppressions 
of  the  representative  body;  and  it  is  the  best 
expedient  that  can  be  devised  in  any  govern 
ment  to  secure  a  steady,  upright  and  impartial 
administration  of  the  laws."  Again  in  page 
420:  "The  complete  independence  of  the  courts 
of  justice,  is  peculiarly  essential  in  a.  limited 
constitution.  By  a  limited  constitution,  I  un 
derstand  one  winch  contains  certain  specified 
exceptions  to  the  legislative  ^authority;  such  for 
instance,  as  that  it  shall  pass  no  bill  of  attain 
der,  no  ex  post  facto  laws,  and  the  like.  Lim 
itations  can  be  preserved  in  practice  no  other 
wav  than  through  the  medium  of  the  courts  of 
justice;  whose  duty  it  must  be  to  declare  all 
acts  contrary  to  the  manifest  tenor  of  the  con 
stitution  void.  Without  this,  all  the  reserva 
tions  of  particular  rights  or  privileges  would 
amount  to  nothing."  Again,  page  421:  "It  is 
far  more  rational  "to  suppose,  that  the  courts 
were  designed  to  be  an  intermediate  body  be 
tween  the  legislature  and  the  people,  in  order, 
among  other  things,  to  keep  the  former  within 
the  limits  assigned  to  their  authority .  The  in 
terpretation  of  the  laws,  is  the  proper  and  pe 
culiar  province  of  the  courts.  A  constitution 
is  in  fact,  and  must  be  regarded  by  the  judges 
as  fundamental  law.  The  constitution  ought 
to  be  preferred  to  the  statute;  the  intention  of 
the  people,  to  the  intention  of  their  agents." 
Again  in  page  423:  "This  independence  of 
the  judges  is  equally  requisite,  .to  guard  the 
constitution  and  the  rights  of  individuals  from 
the  effects  of  those  ill  humors,  which  the  arts 
of  designing  man,  or  the  influence  of  particti- 
ar  conjunctures,  sometimes  disseminate  among 


•he  people  themselves;  and  which,  though  they 
speedily  give  place  to  better  information,  and 
more  deliberate  reflection,  have  a  tendency  in 
the  meantime  to  occasion  dangerous  innova 
tions  in  the  government,  and  serious  oppres 
sions  of  the  minor  party  in  the  community." — 
Again  in  page  424:  "The  benefits  of  the  in 
tegrity  and  moderation  of  the  judiciary,  have 
already  been  felt  in  more  states  than  one;  and 
though  they  have  displeased  those  whose 
sinister  expectations  they  may  have  disap 
pointed,  they  must  have  commanded  the  es 
teem  and  applause  of  all  the  virtuous  and  dis 
interested.  Considerate  men  of  every  descrip 
tion  ought  to  prize  whatever  will  beget  this 
temper  in  the  courts;  as  no  man  can  be  sure 
that  he  mav  not  be  to-morrow,  the  victim  of  a 
spirit  of  injustice  by  which  he  may  be  a  gain 
er  to-day.  And  every  man  must  now  feel  that 
the  inevitable  tendency  of  such  a  spirit,  is  to 
sap  the  foundations  of  public  and  private  con 
fidence,  and  to  introduce  in  its  stead,  univer 
sal  distrust  and  distress."  And  again  in  page 
420,  after  endeavoring  to  prove  that  the  judi 
ciary,  from  its  constitution,  is  the  weakest  de 
partment,  and  that  there  can  be,  no  danger  of 
oppression  from  an  independent  judiciary,  but 
that  the  only  danger  is  fromjjdependent,  servile 
judges,  the  authors  say:  "That  as  liberty  can 
havenothing  to  fear  from  the  judiciary  alone, 
but  would  have  every  thing  to  fear  from  its 
union  with  either  of  the  other  departments; 
that,  as  all  the  effects  of  such  an  union  must 
ensue  from  a  dependence  of  the  former  on  the 
latter,  notwithstanding  a  nominal  and  appa 
rent  separation;  that,  as  from  the  natural  feeble 
ness  of  the  judiciary,  it  is  in  continual  jeopar 
dy  of  being  overpowered,  awed  or  influenced 
by  jits  co-ordinate  branches;  that,  as  nothing 
can  contribute  so  nvuch  to  its  firmness  and  in 
dependence  as  permanency  in  office,  this  qual 
ity  may  therefore  justly  be  regarded  as  an  in 
dispensable  ingredient  in  its  constitution,  and 
in  a  great  measure  as  the  citadel  of  the  public 
justice  and  public  security."  These  extracts 
require  no  commentary :  nor  can  it  be  necessary 
to  multiply  them. 

Such  are  the  sentiments  of  those  great  and 
good  men,  who  achieved  our  independence, 
and  established  our  free  institutions.  And  sim 
ilar  were  the  opinions  of  those  who  formed  the 
Kentucky  constitution.  They  intended  that 
the  head  of  the  judiciary  department  should 
not  be  dependent,  on  the  executive,  or  on  a  bare 
majority  of  the  legislature,  for  the  tenure  of 
office;  that  it  should  be  a  check  on  the  usurpa 
tions  of  tho.se  two  departments,  and  should, 
therefore,  have  a  will  of  its  own,  independent 
of  a  majority  of  the  legislature,  or  of  the  leg 
islature.!  and  executive  united;  and  therefore, 
;he  constitution  requires  the  concurrence  of 
;wo-thirds  to  remove  a  judge.  If  the  majori 
ty  can  constitutionally  turn  the  judges  out  of 
)iiice,  by  an  ordinary  act  of  legislation,  all 
ho  precautions  of  the  constitution  arc  nugato- 
y.  It  is  in  this  viow,  that  reference  has  been 
made  to  the  opinions  of  the  virtuous  and  en- 
ighteued  votaries  of  liberty,  to  shew  that  it  is 
iccessary  that  a  majority  should  never  possess 


BILL  TO  RE-OKGANIZE  THE  COURT  OP  APPEALS. 


the  power  to  remove  the  judges.  The  inde 
pendence  of  the  judiciary  is  not  necessary  or 
E  roper,  for  the  personal  benefit  of  the  judges, 
ut  for  the  security  of  the  dearest  interests  of 
the  people;  for  the  defence  of  those  who  are 
unable  to  defend  themselves. 

If  the  legislature  transcend  the  chartered 
barriers  of  their  power;  if  they  pass  a  bill  of  at 
tainder,  or  ex  post  facto  law,  or  a  law  depriving 
the  citizen  of  the  trial  by  jury,  or  punishing 
him  for  his  religious  or  political  opinions,  it  is 
necessary  that  there  should  be  virtuous  and  in 
dependent  judges,  willing  and  able  to  save 
him,  and  refuse  to  enforce  the  unconstitutional 
and  tyrannical  act.  Hence  the  judges  are 
sworn  to  support  the  constitution;  hence  the 
constitution  is  declared  to  be  the  supreme  law 
of  the  land;  and  hence,  judges  should  not  be 
afraid  of  the  power  of  those  who  concurred  in 
violating  the  constitution,  and  in  usurping  from 
the  people  powers  expressly  prohibited.  But 
they  could  not  be  expected  to  have  the  firm- 
necs  to  resist  the  encroachments  of  a  majority, 
if  they  are  made  dependent  on  that  majority. 

It  is  a  solecism  to  admit,  that  the  judges 
shall  refuse  to  enforce  the  unconstitutional 
acts  of  a  majority,  and  that  they  are,  neverthe 
less,  responsible  to  the  same  majority  fordoing 
their  duty.  If  the  judge  have  a  right  to  de 
clare  a  legislative  act  void,  a  majority  of  the 
legislature  cannot  possess  the  right  to  remove 
him  from  office  for  exercising  that  privilege; 
the  two  rights  cannot  co-exist.  It  is  conceded 
that  the  judge  possesses  the  right  to  decide  on 
the  validity  of  the  acts  of  the  majority.  Conse 
quently  the  majority  has  not  the  right  to  re 
move  him  from  office  for  it. 

Whenever  the  doctrine  is  established,  that 
the  judges  are  in  the  power  and  under  the  con 
trol  of  a  bare  majority  of  the  legislature,  all 
power  is  virtually  absorbed  by  the  legislative 
department,  which  Mr.  Jefferson  declares  to  be 
tyranny.  And  then  the  dominant  faction  can 
trample  on  the  constitution,  without  restraint 
or  control,  and  there  will  be  no  constitution  ex 
cept  the  will  of  the  majority — that  majority 
will  be  ever-changing,  and  consequently  there 
will  be  correspondent  changes  in  the  judicia 
ry,  and  in  their  constructions  of  the  constitu 
tion — there  will  be  no  stability,  no  safety,  no 
confidence,  no  morality;  no  justice — anarchy, 
the  worst  of  all  despotism,  will  reign — your 
judges  must  be  partizans,  the  subservient  en 
gines  of  faction — they  will  bo  such  judges  as 
those  who  condemned  Sidney  and  Russell; 
such  as  those  of  Revolutionary  France,  the 
tame  and  submissive  instruments  in  the  hands 
of  an  accidental  majority — which  majority  will 
generally  be  the  unconscious  instruments,  the 
blind  puppets  in  the  hands  of  some  ambitious 
Robespierre,  who  loves  the  people  for  their  own 
destruction. 

During  the  French  revolution,  the  forms  of 
free  government  were  preserved;  but  never  was 
any  country  cursed  with  a  more  sanguinary 
despotism  than  France,  undor  the  reign  of  un 
controlled  and  "unerring"  majorities.  The 
constitution  was  a  mere  "caput  mortuum,''  as 
every  constitution  will  be,  unless  there  is  some 


department  so  constituted  as  to  possess  the 
will,  and  the  power  to  guard  and  defend  it. 
The  most  shocking  enormities  were  perpetrat 
ed,  in  the  prostituted  name  of  "liberty;"  reli 
gion  was  banished,  Deity  was  blasphemed, 
and  the  most  sacred  rights  were  prostrated  at 
the  shrine  of  a  political  Juggernaut!  The 
character  of  the  revolutionary  courts  is  por 
trayed  by  Burke,  in  this  emphatic  language: 
"In  them  it  will  be  in  vain  to  look  for  any  ap 
pearance  of  justice,  towards  strangers,  towards 
the  obnoxious  rich,  towards  the  minority  of  a 
routed  party,  towards  those  who  in  the  elec 
tions  supported  the  unsuccessful  candidates; 
the  new  tribunals  will  be  governed  by  the 
spirit  of  faction."  Such  have  been  the  courts 
in  all  ages  and  countries,  under  every  form  of 
government,  when  subject  to  the  "majority;" 
and  such  will  be  the  Kentucky  courts,  if  this 
bill  be  approved  by  the  people.  Your  judges, 
like  Thernistocles,  will  never  sit  on  a  bench 
where  strangers  will  have  an  equal .  chance 
with  their  friends.  It  is  easy  to  excite  preju 
dice  against  men  in  office,  particularly  judges; 
and  it  is  the  interest  of  those  whose  object  is 
their  own  aggrandizement,  to  destroy  judicial 
purity  and  independence.  Pericles,  "the  peo 
ple's  friend,"  could  not  mount  to  absolute  pow 
er  until  he  had  prostrated  the  Areopagus; 
and,  that  being  made  subservient,  in  the  name 
of  "the  people,"  and  of  "liberty ,"  ho  governed 
the  people." 

There  is  no  danger  of  judges  becoming  ty 
rants;  all  history  proves  it.  Tyranny  always 
prings  from  another  quarter.  Whenever  de 
signing  men  conspire  against  the  liberties  of 
the  people,  they  flatter  them,  arid  endeavor  to 
put  down  the  judiciary;  and  whenever  honest 
judges  are  attacked  by  prominent  and  aspiring 
men,  the  people  are  in  danger.  They  should 
protect  such  judges,  if  they  intend  to  protect 
themselves. 

If  the  power  to  remove  the  judges  by  this 
bill  be  acknowledged,  there  is  no  longer,  in 
practice,  a  constitution;  the  form  may  remain, 
but  the  spirit  of  the  living  constitution  is  gone. 
It  is  not  for  the  judges,  but  for  the  liberties  of 
the  people,  for  the  constitution  under  which  I 
have  grown  into  manhood,  that  I  protest 
against  the  passage  of  this  bill.  The  stab 
which  is  now  meditated,  if  not  averted,  may 
be  mortal — and  our  rights  will  then  be  less 
secure  than  those  of  Tnglishmen.  What  is  it 
that  prompts  the  !'  nglish  tar,  when  going  into 
action,  to  nail  his  country's  flag  to  the  mast, 
and  shout  for  1  ngland?  It  is  because,  al 
though  in  many  respect*  he  is  depressed,  his 
personal  rights  are  secure  from  the  encroach 
ment  of  the  crown,  or  even  an  omnipotent 
parliament,  and  he  can  appeal  to  independent 
courts  for  justice;  as  Wilkes  did  to  Mansfield, 
against  the  outlawry  of  parliament.  Pass  this 
bill,  and  sustain  it  with  the  people,  and  you 
not  only  have  an  omnipotent  (legislature,  but 
servile,  dependent  courts,  unwilling'or  unable 
to  support  your  constitution. 

But,  said  Mr.  Robertson,  if  the  legislature 
possess  the  power  to  remove  the  judges  in  the 
mode  proposed,  why  exercise  it?  What  have 


SPEECH  OF  MR.  ROBERTSON,  ON  THE 


the  judges  done?  Have  they  been  guilty  of 
any  misdemeanor  in  office?  No.  Have  they 
been  guilty  of  any  dereliction  of  duty?  No. 
Are  they  unfit?  No;  all  acknowledge  their 
ability,  virtue  and  firmness.  Do  you  expect  to 
supply  their  places  by  better  judges?  You 
will  not,  you  cannot  do  it.  If  you  remove  the 
present,  you  will  not  have  a  court  in  which  the 
country  will,  or  ought  to  have  confidence:  their 
acceptance  of  the  office  under  such  circum 
stances  will  prove  their  unworthiness.  Men 
combining  all  the  qualities  of  these  judges — 
their  integrity,  their  ability,  their  morality, 
their  experience,  their  impartiality— will  not 
be  easily  found,  or  if  found,  will  not  accept 
the  office,  humble,  dependent,  and  degraded, 
as  it  will  be  rendered 

If  it  were  admitted  for  argument,  that  the 
judges  have  given  an  erroneous  opinion,  would 
*it  be  expedient  or  just  to  remove  them  for  such 
a  cause?  No  judge  could  then  retain  his 
seat.  "Will  you  remove  your  governor  for  im 
properly^  pardoning,  or  for  refusing  to  sign  a 
bill  which  a  majority  passed?  But  the  de 
cision  complained  of  has  not  had,  and  will  not 
have  any  effect;  what  end  can  then  be  effected 
by  removing  the  judges?  None,  except  to 
give  their  offices  to  other  men. 

But  if  the  decision  be  erroneous,  the  error 
can  be  corrected  alone  by  the  Supreme  Court. 
It  is  the  federal  constitution  which  has  been 
declared  to  be  violated,  by  the  two  years'  re 
plevin  act.  This  is  the  constitution  of  twenty- 
four  states,  and  must  be  the  same  in  each.  The 
Supreme  Court,  which  is  the  court  of  all,  must 
therefore  control  the  decision  of  the  state 
courts  on  the  constitution  of  the  nation.  Ken 
tucky  has  no  right  to  dictate  to  the  Union;  she 
must  submit  to,  and  acquiesce  in  the  decision 
of  the  organ  of  the  national  will.  If  the  court 
of  the  Union  affirm  the  decision  of  the  state 
court,  the  question  is  settled  beyond  the  pow 
er  of  the  state.  If  that  court  should  reverse  that 
decision,  the  state  court  must  submit,  and 
conform  to  the  paramount  decision  in  future; 
the  removal  of  the  judges  can  then  have  no  le 
gitimate  object,  no  practical  effect  on  the  ques 
tion.  If  they  shall  be  removed,  and  the  Su- 
Court  affirm  (as  they  no  doubt  will  do)  their 
opinion,  their  successors  will  be  bound  to  en 
force  that  opinion,  tho  opinion  of  the  legisla 
ture  to  the  contrary  notwithstanding.  How 
can  it  be  evaded?  "  If  Kentucky  has  a  right 
to  interpret  the  federal  constitution,  for  every 
other  state,  and  to  resist  the  authority  of  the 
Union,  every  other  state  has  an  equal  right — 
mid  there  is  no  Union.  If  the  majority  must 
govern,  it  is  the  majority  of  the  people  of  all 
the  states,  and  not  of  Kentucky,  who  must  de 
cide  this  question.  No  principle  can  there 
fore  be  settled,  no  object,  allowable  or  honora 
ble.  can  be  effected  by  a  removal  of  the  judges 
and  the  only  effect  will  be,  to  destroy  the  pu 
rity,  the  honesty  and  independence  of  the 
bench. 

I  do  not  however  admit,  said  Mr.  Robertson, 
that  the  decision  of  the  court  is  erroneous;  I 
have  no  doubt  it  is  correct,  and  never  will  be 
reversed. 


Having  on  a  former  occasion  argued  this 
question  in  extenso,  I  will  not  now  enter  into 
•ul  its  details.  But  there  are  some  considera 
tions  which  should  not  be  pretermitted.  In 
all  that  has  been  written  and  spoken  against 
the  decision  of  the  court,  an  intelligent  defini 
tion  of  the  obligation  of  a  contract  could  not 

C  found.  Those  who  denounce  the  decision 
ail  to  show  its  errors;  they  cannot  doit.  They 
declaim  on  the  subject  of  state  rights,  and 
charge  the  court  with  confounding  right  and 
remedy;  this  is  the  burden  of  the  song;  yet  no 
state  right  has  been  violated;  and  the  differ 
ence  between  right  and  remedy  is  left  un 
touched  by  the  opinion  of  the  court. 

They  have  decided  that  a  two  years'  replev 
in  law  cannot  constitutionally  'be  applied  to 
contracts  made  before  the  passage  of  the  act; 
that  it  impairs  "the  obligation  of  a  contract." 
The  constitution  of  the  United  States  declares, 
that  "no  state  shall  pass  any  ex  post  facto  law, 
or  law  impairing  the  obligation  of  contracts." 
An  ex  post  facto  law  is  one  which  denounces 
punishment  for  an  act  which  was  not  illegal 
when  it  was  done.  It  is  a  law  which  acts  re 
troactively  on  the  conduct  of  the  citizen.  Is  it 
not  fair  to  suppose  that  the  correlative  member 
of  the  sentence  has  a  correspondent  meaning? 
that  a  law  impairing  the  obligation  of  con 
tracts,  is  one  operating  retroactively  on  con 
tracts?  The  plain  meaning  of  the  clause  is, 
that  no  criminal  law  shall  operate  retrospect 
ively  on  acts;  and  that  no  civil  law  shall  oper 
ate  " retrospectively  and  essentially  on  con 
tracts.  This  construction  gives  a  similar  im 
port  to  each  branch  of  the  prohibition,  and 
harmonizes  with  the  objects  of  the  clause.  It 
was  intended  that  no  ex  post  facto  law  as  to 
crimes,  nor  any  expost  facto  law  as  to  con^ 
tracts,  should  be  valid.  Such  laws  are  unjust 
and  impolitic,  arid  contrary  to  the  genius  of 
the  common  and  civil  law.  England  does 
not  venture  to  pass  retrospective  laws;  nor 
does  any  European  government  of  good  stand 
ing  attempt  it.  They  arc  not  restrained  by 
constitutional  inhibitions,  but  by  moral  inter 
dicts — by  the  intrinsic  injustice  of  such  legis 
lation.  And  shall  we,  under  our  federal  and 
state  constitutions,  possess  the  power  which 
the  potentates  of  Europe  do  not  dare  to  exert? 
The  legal  obligation  of  a  contract  is  certain 
ly  the  law  which  obliges  If  the  law  will  not 
enforce  a  contract,  it  has  no  legal  sanction  or 
obligation;  as  the  moral  obligation  is  the  mor 
al  sanction,  the  legal  obligation  must  be  the  le 
gal  sanction.  The  legal  obligation  of  the  con 
tract  is  the  legal  right  to  enforce  it;  the  mode 
of  enforcement  may  be  called  the  remedy. 
This  mode  or  remedy  may  be  changed  by  the 
legislature  at  discretion;  provided  that,  by  the 
change,  the  right  is  not  essentially  im 
paired.  If  all  remedy  be  taken  away,  the  legal 
obligation  is  destroyed;  for  that  cannot  be 
binding  in  law  which  the  law  will  not  enforce. 
If  destroying  the  remedy  destroy  the  legal 
right,  any  change  in  the  remedy  which  im 
pairs  its  efficacy,  must  necessarily  impair  the 
right  or  obligation.  It  it  mockery  lo  tell  a 
man  that  you  do  not  affect  his  right,  when  you 


BILL  TO  RE-ORGAHTZE  THE  OOTTRT  OF  APPEALS. 


87 


deprive  him  of  all  the  legal  means  of  assert 
ing  it;  he  will  still  have  a  moral  right,  but  it 
is  only  the  shadow — the  legal  right  is  the  sub 
stance. 

Those  who  assert  that  right  and  remedy  are 
so  radically  distinct,  that  affecting  the  one  does 
not  affect  the  other,  ought  not  to  forget,  that 
legislation  can  affect  legal  rights  in  no  possible 
mode,  except  by  acting  on  the  remedy.  Let 
any  gentleman  state  a  mode  by  which  the  right 
can  be  impaired  by  law,  without  acting  on  the 
remedy;  it  must  be  admitted  that  there  can  be 
none.  Then  the  whole  argument  is  surrender 
ed;  for  the  admission  is  an  acknowledgment, 
that  if,  by  law  the  legal  right  shall  be  im 
paired,  it  is  impaired  by  postponing,  or  so 
changing  the  remedy  as  to  affect  the  value  of 
the  right;  and  consequently,  that  if  it  b«  uit- 
constitutional  to  impair  or  destroy  the  right,  it 
is  unconstitutional  to  deny  the  remedy,  or 
change  it  so  as  to  impair  or  destroy  the  right; 
because  it  is  only  by  changing  or  destroying  the 
remedy  that  the  right  is  affected.  The  only 
question  then  is,  whether  by  passing  the  two 
years'  replevin  act,  the  remedy  is  so  far  post 
poned  as  to  affect  the  value  of  the  right?  No 
one  can.  deny  that  it  is.  Indeed  it  was  not 
remedy,  but  delay ;  it  was  not  intended  to  give 
remedy  to  the  plaintiff,  but  relief  to  the  de 
fendant.  Away  then  with  the  known  distinc 
tion  between  right  and  remedy;  it  proves  no 
thing;  it  is  a  quibble — an  evasion — a  delusion. 
If  a  contract  be  made  between  two  persons 
cast  away,  like  Alexander  Selkirk,  on  an  is 
land,  without  civil  rule,  it  would  generally  be 
legally  obligatory;  for  they  should  be  presumed 
to  contemplate  either  the  law  of  thu  govern 
ment  where  they  might  first  meet,  or  more 
probably  the  law  of  the  country  to  which  one 
or  both  of  them  looked  as  home;  and  the  law 
to  which  they  should  be  presumed  to  refer 
would  regulate  the  civil  obligation  of  their  con 
tract.  The  lex  loci  contractus  does  not  fix  the 
legal  obligation,  when  the  contracting  parties 
contemplate  the  law  of  any  other  place,  as  they 
are  presumed  to  do,  when  a  contract  made  ii 
one  country  is  to  be  performed  in  another,  ir 
which  case  the  lex  loci  solutions,  or  the  law  o 
the  place  of  performance  will  govern. 

The  response  of  the  judges  has  discussed  this 
subject  so  ably,  that  it  is  unnecessary  for  me 
said  Mr.  Robertson,  to  dwell  on  it.  It  is  clea 
that  the  court  have  decided  correctly;  the} 
have  given  the  construction  to  the  cons'titutioi 
which  those  who  made  it  gave  to  it.  Luthe 
Martin,  who  was  a  distinguished  member  o 
the  federal  convention,  voted  against  the  con 
stitution,  and  in  a  letter  to  his  constituents,  as 
signed  as  one  strong  reason,  the  insertion  o 
the  clause  in  relation  to  the  obligation  of  con 
tracts.  This  is  his  language:  "The  same  sec 
tion  also  puts  it  out  of  the  power  of  the  state 
to  make  anything  but  gold?  and  silver  coin  ; 
tender  in  the  payment  of  debts,  or  to  pass  an 
law  impairing  the  obligation  of  contracts.  ! 
consider,  sir,  that  there  might  be  times  of  sue] 
great  calamity  and  distress,  and  of  such  ex 
treme  scarcity  of  specie,  as  should  render  i 
the  duty  of  a  government,  for  the  preservatio 


f  even  the  most  valuable  part  of  its  citizens, 
n  some  measure  to  interfere  in  their  favor,  by 
assing  laws  totally  or  partially  stopping  the 
ourts  of  justice,  or  authorizing  the  debtor  to 
iay  by  instalments,  &c.  The  times  have  been 
uch  as  to  render  regulations  of  this  kind  ne- 
essary  in  most  or  all  of  the  states,  to  prevent 
he  wealthy  creditor  and  the  monied  man  from 
otally  destroying  the  poor,  though  honest 
lebtor.  Such  times  may  again  arrive.  I 
herefore  voted  against  depriving  the  states  of 
'his  power,"  &c.  In  pages  37  and  243  of  the 
jetters  of  Publius,  on  the  authority  of  which 
he  states  ratified  the  constitution,  may  be 
ouiid  in  substance  the  same  doctrine.  What 
be  more  irresistible  authority?  Those 
nen  were  all  members  of  the  convention,  and 
knew  what  they  intended  to  effect  by  the 
lause.  They  had  felt  the  evils  which  were 
>roduced  by  delay  and  relief  laws,  in  the 
tales,  before  the  adoption  of  the  constitution, 
,nd  thought  it  necessary  to  prevent  their  re- 
urrence.  Those  evils  are  depicted  by  the 
listorians  of  the  times;  one  or  two  extracts  only 
will  be  necessary  to  show  what  they  were. 

"The  effect  of  these  laws  interfering  between 
debtors  and  creditors,  was  extensive.  They 
destroyed  public  credit  and  confidence  between 
man  and  man,  injured  the  morals  of  the  peo- 
)le,  and  aggravated  the  final  ruin  of  the  unfor- 
iinate  debtor,  for  whose  temporary  relief  they 
were  brought  forward." 

Speaking  of  the  adoption  of  the  federal  con 
stitution,  and  the  necessity  and  intent  of  the 
clause  in  relation  to  contracts,  the  historian 
observes:  "Their  acceptance  of  a  constitution, 
which,  among  other  clauses,  contained  the  re-* 
straining  one,  which  has  been  just  recited,  was 
an  act  of  great  self-denial.  To  tie  up  the 
hands  of  future  legislatures,  so  as  to  deprive 
them  of  the  power  of  repeating  similar  acts  on 
any  emergency,  was  a  display  both  of  wisdom 
and  magnanimity." 

Speaking  of  the  effects  of  the  new  constitu 
tion,  and  particularly  the  clause  which  he  had 
described,  as  intended  to  prevent  any  interfer 
ence  between  debtor  and  creditor,  the  historian 
3ays:  "Public  credit  was  reanimated;  the  own 
ers  of  property  and  holders  of  money  freely 
parted  with  both,  well  knowing  that  no  future 
law  could  impair  the  obligation  of  contracts." 

Here  are  disclosed,  in  impressive  language, 
some  of  the  reasons  which  induced  the  adop- 
don  of  that  clause  in  the  federal  constitution, 
which  forbids  the  states  to  impair  the  obliga 
tions  of  contracts.  Experience  had  demon 
strated,  not  only  the  injustice  and  inefficiency, 
but  the  demoralizing  and  distracting  effects  of 
legislating  for  the  relief  of  the  debtor,  at  the  ex 
pense  of  the  creditor  class  of  the  community. 
It  was  unjust,  because  it  denied  to  the  creditor 
the  enjoyment  of  what  he  was  entitled  to  fairly 
and  honestly;  it  was  inefficacious,  because  it 
produced  more  mischief  than  good;  it  did  not 
eventually  effect  the  benevolent  purposes  for 
which  a  misguided  philanthropy  intended  it. 
It  was  very  demoralizing,  because  it  generated 
iclle  habits,  destroyed  confidence,  and  un- 
,hinged  society.  But  the  great  objection  to  it 


SfrMOH  OF  ME.  ROBERTSON,  Otf 


was  that,  if  allowed  to  be  practised  by  the 
states,  without  restriction,  there  was  danger  of 
its  perversion  and  abuse,  to  such  a  degree,  as 
to  irritate  the  citizens  of  different  states,  and 
ultimately  dissever  the  union,  or  at  leas*  very 
much  impair  the  moral  ligaments  which  alone 
can  preserve  it  from  disruption.  It  was  there 
fore  deemed  better  to  deprive  the  states  entire 
ly  of  the  power,  than  to  jeopard  the  stability 
of  justice,  and  the  integrity  of  the  union,  by 
running  the  hazard  of  its  abuse.  Justice 
should  be  stable,  and  of  unvaried  tenor 
throughout  the  union;  it  is  a  national  object 
One  object  of  the  federal  union  is  declared  to 
be,  "to  establish  justice."  The  citizens  of 
each  state  are  protected  in  the  security  of  equal 
rights,  in  all  the  states;  this  creates  a  national 
spirit — a  fraternal  feeling  in  the  whole  Ameri 
can  family.  And  under  this  view,  no  clause 
is  more  essential  to  the  union  of  the  states  than 
the  one  under  consideration;  none  should  be 
more  pertinaciously  defended  from  violation, 
by  the  sincere  and  enlightened  patriot.  It  is 
one  in  which  every  citizen  of  the  United  States 
is  as  much  interested  as  the  people  of  Ken 
tucky;  and  if  the  doctrine  be  orthodox,  that  a 
majority  must  govern,  as  it  certainly  is,  with 
few  exceptions,  a  majority  of  the  states  have 
the  right  to  govern  on  this  subject.  There  can 
be  no  doubt  that  a  majority  of  the  states  con 
cur  with  our  Court  of  Appeals  in  the  construc 
tion  which  they  have  given  to  this  clause  of 
the  federal  constitution.  It  may  in  safety  be 
demanded  of  the  opposers  of  that  decision,  to 
produce  evidence  that  there  is  one  state  op 
posed  to  it. 

Every  state  which  has  acted  on  the  ques 
tion,  has  expressed  the  same  sentiment;  Mis 
souri,  Tennessee,  Mississippi,  Vermont,  North 
Carolina,  have  all  decided  that  such  an  act  as 
the  two  years'  replevin  act  of  Kentucky  is  un 
constitutional.  The  Circuit  Court  of  the 
United  States,  Judge  Washington  presiding, 
has  settled  the  same  principle,  in  the  case  of 
Golden  vs.  Prince.  In  Virginia,  since  the  late 
war,  an  attempt  was  made  in  the  legislature  to 
pass  a  similar  law,  and  after  an  able  debate,  it 
was  decided  almost  unanimously  that  it  would 
impair  the  obligation  of  contracts,  and  there 
fore  would  be  unconstitutional,  and  the  meas 
ure  was  abandoned.  This  information  I  have 
from  a  gentleman  now  in  the  lobby,  who  was 
a  distinguished  member  of  that  legislature. 
The  Supreme  Court  has  virtually  given  the 
same  decision  in  several  cases;  and  no  superior 
court  in  America  has  given  any  other  decision. 
The  opinion  of  the  Supreme  Court  of  N"orth 
Carolina  on  this  subject,  in  the  case  of  Critteu- 
den  vs.  Jones,  is  now  before  me;  it  is  very  able 
and  elegant,  and  exhibits  substantially  the 
same  view  as  that  given  by  our  Court  of  Ap 
peals.  Any  gentleman  can  examine  it;  it 
would  consume  too  much  time  to  read  the 
whole  case;  the  following  extract  may  suffice: 

"If  an  act  postponing  the  payment  of  debts  be 
constitutional,  what  reasonable  objection  could 
be  made  to  an  act  which  should  enforce  the 
payment  before  the  debt  becomes  due?"  "The 
rights  of  both  parties  established  by  the  con 


tract,  are  in  the  eye  of  justice  equally  sacred: 
and  whether  those  of  the  creditor  are  sacrificed 
to  those  of  the  debtor,  or  the  subject  be  reversed, 
we  are  compelled  to  think  that  the  constitution 
is  overlooked.  JS"o  unimportant  part  of  the  ob 
ligation  of  every  contract,  arises  from  the  in 
ducement  the  debtor  is  under  to  preserve  his 
faith.  In  most  cases  he  (the  creditor)  would 
reserve  both  money  and  property,  in  his  own 
possession,  were  he  not  assured  that  the  LAW 
animates  the  industry,  and  quickens  the  punc 
tuality  of  his  debtor,  and  that  by  its  aid  he  can 
obtain  payment  in  six  or  nine  months.  The 
act  under  review  delays  this  assurance."  "The 
right  to  suspend  the  recovery  of  a  debt  for  one 
period,  implies  the  right  to  suspend  it  for  an 
other."  It  is  difficult  to  conceive  how  the  law 
c  an  otherwise  impair  an  existing  right,  than  by 
withholding  the  remedy,  which  is  in  effect  to 
sespend  the  right." 

In  the  face  of  such  a  formidable  array  of  au 
thorities — the  opinions  of  those  who  made  the 
constitution;  of  those  who  lived  cotemporane- 
ously;  of  every  state  in  the  Union  which  has 
expressed  an  opinion;  the  decision  of  the  Uni 
ted  States'  Circuit-  Court  for  Pennsylvania;  the 
clear  intimations  of  the  Supreme  Court;  the 
ability  of  the  argument  offered  by  our  court,  in 
support  of  their  decision;  the  inability  of  those 
opposed  to  the  court,  to  show  what  the  consti 
tution  means,  unless  it  means  what  the  court- 
has  decided  that  it  does;  the  evident  design  of 
the  constiution,  deducible  from  its  terms  by 
every  rational  mode  of  interpretation — in  the 
face  of  all  this,  are  not  those  who  denounce  the 
court  for  error,  guilty  of  extreme  temerity? 
Ought  they  not  at  least  to  doubt,  and  doubting, 
to  acquiesce,  and  recoil  from  the  attack  which 
they  are  making  against  a  co-ordinate  depart 
ment  of  the  government?  Even  the  elaborate 
replication  to  the  response  of  the  judges, 
when  examined,  is  a  virtual  concession 
of  the  correctness  of  the  opinion  of  the 
court.  In  all  that  long  document,  there  is  no 
attempt  to  explain  the  import  and  design  of 
the  clause  of  the  constitution  in  relation  to  the 
obligation  of  contracts — it  is  ad  captandum, 
metaphysical  and  evasive;  it  surrenders  the 
argument.  The  author  confounds  the  plain 
and  acknowledged  distinction  between  the 
moral  and  the  legal  obligation.  He  inquires 
what  was  the  obligation  of  the  contract  or  cove 
nant  entered  into  between  Deity  and  Abraham! 
and  answers  it  himself,  by  inquiring  in  what 
court  Abraham  could  have  arraigned  his  God 
for  a  breach  of  the  covenant.  This  is  irreve- 
verent,  and  is  only  alluded  to,  to  show  the  eva 
sions  and  miserable  artifices  of  the  book. 
Does  the  author  of  the  book  suppose  that  the 
covenant  with  Abraham  had  any  civil  obliga 
tion?  Does  he  not  know  that  its  obligation 
was  of  a  different  and  far  more  transcendental 
character?  that  it  was  divine — as  immutable  as 
the  attributes  of  Deity?  But  if  the  author  of 
this  extraordinary  production  meant  to  prove 
any  thing  by  this  argument,  it  was  to  show 
that,  as  the  obligation  of  the  covenant  did  not 
consist  in  a  legal  right  to  enforce  it  by  legal 
means,  consequently  the  obligation  of  a  con- 


BILL  TO  RE-ORGANIZE  COURT  OF  APPEALS. 


89 


tract  between  A  and  B,  does  not  consist  in  the 
right  to  enforce  it  by  legal  means.  How  falla 
cious  the  idea!  But  such  are  all  the  arguments 
in  the  tongbook.  Let  it  go  to  the  people  with 
the  response,  and  it  carries  its  antidote.  It  is 
not  comparable  to  that  luminous  and  unan 
swerable  vindication  of  the  court.  The  re 
sponse  will  be  read  by  our  children,  as  a  car 
men  necessarium,  Avhen  the  replication  will 
have  sunk  into  oblivion — and  wlien  the  reputa 
tion  of  its  author  shall  have  been  swallowed 
up,  like  the  Niger,  in  the  great  moral  desert  to 
which  it  is  hastening,  the  fame  of  the  judges, 
like  the  Nile,  will  flow  on,  full,  perennial  and 
refreshing. 

An  exasperated  party  may  remove  the 
judges  from  office,  but  they  cannot  disgrace 
them — they  cannot  soil  their  characters.  The 
good  and  'the  wise  will  surround  them  with 
their  confidence  and  their  plaudits,  when 
those  now  engaged  in  the  unhallowed  attempt 
to  degrade  them,  are  remembered  only  as  were 
the  blind  and  envious  mob,  who  exiled  Aris- 
tides,  becau.se  he  was  JUST.  The  act  which 
deprives  them  of  office  will  only  increase  their 
claims  to  higher  and  better  office;  it,  will 
transmit  their  memories  to  posterity,  hallowed 
by  the  recollection  that  they  were  martyrs  in 
the  cause  of  justice,  of  truth,  and  of  constitu 
tional  liberty;  it  will  extend  the  horizon  of  their 
fame,  and  imprint  their  merits  in  proud  relief 
on  their  country's  monuments. 

How  much  more  enviable  is  the  fortune,  and 
elevated  the  character  of  a  virtuous  man,  pun 
ished  for  his  incorruptible  purity,  than  of  him, 
who,  to  acquire  a  transient  triumph,  or  an 
ephemeral  fame,  has  helped  to  pull  him  down? 
Virtue  will  triumph — truth  will  eventually 
prevail.  Men  pass  away  and  are  forgotten, 
but  principles  are  immortal.  The  day  may 
not  be  far  distant  when  the  proudest  of  us  may 
wish  that  ho  were  a  Boyle,  an  Owsloy,  or  a 
Mills,  and  had  been  removed  from  office  for  his 
virtue  and  firmness.  From  my  boyhood  I  have 
known  two  of  these  judges  intimately,  and  it 
!:•'>  with  pride  and  confidence  that  I  declare, 
that  I  never  knew  more  virtuous,  more  amia 
ble,  more  honorable  men — purer  men  or  better 
citizens,  than  John  Boyle  and  William  Ows- 
ley.  They  are  ornaments  to  the  bench.  With 
the  other  judge.  I  am  not  so  well  acquainted, 
but  I  know  enough  of  him  -o  believe  thai  lie  is 
an  honest  and  upright  man,  and  able  judge. 
To  defend  such  men  in  such  a  cause  cannot  be 
criminal — to  me  it  is  the  proudest  act  of  my  life. 
{  consider  myself  in  this  humble  and  unpopu 
lar  effort,  as  one  of  a  small  and  proscribed 
baud,  who  are  the  forlorn  hope  of  the  constitu 
tion.  And  although  I  have  a  foreboding  that 
this  bill  will  pass,  I  will  not  despond;  for  1  re 
collect,  tha*-.  although  the  darkest  day  which 
En^lnnd  ever  saw,  was  that  on  which  Sidney 
fell,  in  1"  -  than  five  years  she  was  cheered 
with  the  brightest  that' ever  dawned  on  her 
isle. 

In  this  unavailing  effort,  it  i.s  not  the  cause 

of  the  judges  alone  that  I  advocate,  said   Mr 

Robertson,  but  the  cause  of  order,  of  safety,  oi 

justice,  of  liberty — the  stranger's   cause — the 

12 


3oor  man's  cause — the  cause  of  that  constitu 
tion  which  is  the  boast  of  our  country,  and  the 
mnoply  of  its  people. 

If  the  people  ratify  the  passage  of  this  bill, 
the  constitution  is  laid  low  at  the  feet  of  any 
ambitious  man  who  may  lead  a  majority;  the  ju 
diciary  will  be  humbled, all  power  engrossed  by 
:he  other  departments,  and  instead  of  being 
governed  by  the  principles  of  eternal  justice, 
axed  as  landmarks  in  the  constitution,  we 
shall  be  under  the  dominion  of  the  resent 
ments,  whims  and  passions  of  the  leaders  of 
ever  varying  factions.  Instead  of  being  blessed 
with  stability,  confidence,  and  security  for 
Life,  liberty,  and  property,  we  shall  be  cursed 
with  revolutions,  distrust  and  licentiousness. 
For  if  the  majority  can  effect  their  objects  in 
passing  this  bill,  there  is  nothing  in  the  pow 
er  of  men,  which  they  may  not  do.  It  will 
then  be  in  vain  that  the  constitution  says  to 
them,  you  shall  not  pass  a  bill  of  attainder; 
they  will  pass  it,  if  they  wish  to  do  so.  And 
to  whom  can  the  appeal  be  made?  Not  to  the 
judiciary;  they  are  no  longer  a  co-ordinate  de 
partment.  They  bow  to  the  strong  party — the 
very  party  that  they  were  created  to  check. 
We  may  still  have  a  paper  constitution,  but 
the  principles  which  sustain  and  enforce  it 
will  be  prostrated.  "We  may  still  have  the  ap 
pearance  of  liberty;  so  had  the  Romans  under 
Augustus.  We  may  still  have  patriots,  but 
they  will  be  proscribed;  their  aspirations  will 
be  treason,  and  those  who  govern  will  be 
called  the  people's!  friends,  and  will  tyrannize 
in  their  name, — like  Clodius,  who,  after  hav 
ing  caused  the  cxilation  of  the  patriotic  Cic 
ero,  demolished  his  house,  and  erected  on  its 
ruins  a  statue  to  "Liberty?"  If  public  sen 
timent  sustain  this  bill,  such  may  be  the  con 
sequences. 

This  drama  is  about  to  close;  we  are  in  its 
last  act.  May  its  last  scene  be  as  honorable 
and  as  ennobling  to  Kentucky,  as  its  preceding 
ones  have  been  humiliating  and  alarming. 
May  we  yet  behold  the  ark  of  our  safety,  after 
weathering  the  most  frightful  storm  that  ever 
threatened  our  ruin,  ride  in  safety  and  triumph 
into  its  old  harbor,  the  people's  affections,  with 
"Liberty  and  Law"  inscribed  on  its  floating 
banner.  Whilst  we  are  figuring  on  the  stage  in 
this  eventful  drama,  we  should  know,  that  it- 
is  not  so  important  what  parts  we  play,  as  that, 
we  play  them  well;  we  act  not  only  for  ourselves, 
but  for  those  who  shall  come  after  us  and  for 
the  people  of  other  states.  The,  whole  Union, 
as  in  an  amphitheatre,  are  looking  with  deep 
concern  on  our  deliberations,  and  are  praying 
that  Kentucky  may  be  saved  from  degrada 
tion.  And  ehall  their  entreaties,  their  opin 
ions,  be  disregarded?  Will  not  a  just  Heaven 
interpose,  and  prevent  .the  reckless  demolition 
of  that  political  edifice,  which  was  reared  un 
der  the  auspices  of  a  divine  Providence?  Is 
there  no  Manlius,  to  give  the  alarm  from  the 
"watch-tower?  no  Camillus,  to  save  the  citadel? 
no  Ulysses,  to  steer  our  shattered  ship  from  the 
whirlpool  of  paity,  and  save  the  crew  from 
,those  siren  sounds,  "civil  liberty,"  "the  ma- 


SPEECH  OF  MR.  ROBERTSON  ON  THE 


jesty  of  the  people,"  which  are  uttered  to  se 
duce  and  to  destroy? 

I  have,  Mr.  Speaker,  taken  my  passage  in 
this  vessel;  ray  wife  and  children  are  on 
board.  I  will  cling-  to  her  as  long  as  she  lloats, 
and  should  she  sink,  1  will  seize  her  last 
plank,  as  my  best  hope! 

In  the  humble  part  which  it  has  fallen  to  my 
lot  to  bear  in  this  great  question,  I  expect  no*t 
victory,  I  solicit  not  applause.  My  only  wish 


against  this  ruinous  and  violent  act,  and  of 
transmitting  to  my  posterity,  on  the  record,  a 
memorial  of  my  opposition  to  it. 

If,  by  any  exertion  which^l/could  make  on 
this  floor,  I  could  avert  the  fatal  blow  that  is 
aimed  at  the  very  heart  of  the  constitution,  my 
highest  ambition  would  be  fully  gratified. 
But,  sir,  my  efforts  are  lost — the  die  is  cast — 
the  constitution  falls!  and  the  only  consolation 
is  a  belief  that  I  have  done  my  duty.  Others 


i.">,  that  I  may  promote  the  welfare  of  the  coun-   may  wear  their  crowns  of  laurels,  fo*  their  vic- 
try  which  gave  me  birth,  and  entitle  myself  to   tory  over   the   great   charter  of  the   people's 
the  reputation  of  an  honest  man.     I  fear   not  |  rights.     As  for  me,  I  prefer  the  approbation  of 
responsibility — Heaven  made   me  free,  and  Ija  soundjconscience,  even  in  obscurity,  to  the 
will  not  make  myself  a  slave.     I  have  not  con- 1  proudest  station  purchased  at  so  dear  a  price; 
suited  men  inpoVer.     Although  not  one  drop   with  this,  the^humblest  station  cannot  make  me 
of  patrician  blood  runs  in  my  veins,  I  am  criti-   miserable;  without  it,  the 'most  exalted  could 
tied  to  the  humble  privilege  of  obeying  the  die-  j  not  make  me  happy. 
tates  of  my  own  conscience,  and  of  fearlessly  ;  "One  self-approving  hour  far  outweighs 
uttering  my  opinions.     And  I  shall  deem  it  Whole  years  of  stupid  starers,  and  loud  huzzas; 
one  of  the  most;  fortunate  incidents  of  my  life,  1  And  more  true  joy,  Marcellus 'exiled  feels, 
that  I  have  had  an  opportunity  of  protesting  I  Than  Caesar  with  a  senate  at  his;hecls." 


RELECTION. 


After  the  passage  of  the  "Re-organizing  Act"  Mr.  Robertson  urged 
the  minority  in  the  legislature  to  unite  in  a  protest,  appealing  to  the 
people  of  Kentucky,  who  were  then  the  only  arbiters  between  "the  old 
court"  and  "the  new  court"  appointed  under  that  act.  But  some  of  those 
who  had  voted  against  the  act,  apprehending  that  a  further  struggle 
would  crush  themselves,  and  seal  the  downfall  and  proscription  of  the 
constitutional  party,  preferred  to  ground  their  arms,  and  at  once  submit. 
It  being  the  purpose  of  a  manifesto  to  commiit  the  members  of  the  leg 
islative  minority,  and  animate  their  party,  unanimous  co-operation  was 
deemed  important,  if  not  indispensable  to  that  end;  and  consequently 
the  apparent  hopelessness  of  such  unanimity  discouraged  further  effort 
to  rally  by  that  mode.  In  that  state  of  suspense,  Mr.  Robertson,  sick 
and  in  bed,  was  visited  by  Robert  Wickliffe  and  John  Green,  who  informed 
him  that  most  of  the  minority  would  sign  a  protest  if  he  would  prepare 
one.  Considering  this  as  the  last  hope,  and  feeling  sure,  as  proph 
esied  in  the  foregoing  speech,  that  the  people,  if  properly  addressed, 
would  repudiate  the  act,  he  resolved  (though  that  was  the  last  day  of 
the  session)  to  try  the  experiment  of  a  bold  and  condensed  protest,  for 
galvanizing  his  desponding  party,  and  affording  to  all,  who  might  de 
sire  honest  investigation,  a  text  for  argument  against  the  act.  And  ac 
cordingly  the  following  protest  was  prepared  by  him,  signed  by  the  mi 
nority,  and  presented  to  the  House  of  Representatives  before  3  o'clock 
of  that  same  and  last  day  of  the  session. 

On  the  presentation  of  it,  Mr.  Rowan,  as  leader  of  the  majority,  cour 
teously  moved  a  dispensation  of  the  reading  of  it,  and  its  admission'to 
the  Journals;  and  thereupon  the  House  of  Representatives  unanimously 
voted  to  place  it  on  the  Journals.  But  the  Senate  having,  just  before 
that  vote,  rejected  it,  after  hearing  it  read,  Jeroboam  Bcauchamp,  a  Senator 
from  the  county  of  Washington,  came  to  the  lobby  of  the  House  and'told 
Mr.  Rowan  what  the  Senate  had  done,  and  said  to  him,  "it  is  the  devil, 
and  if  you  dorC  thick  it  out  of  your  House,  it  will  blow  us  all  s  Icy -high" 

Mr.  Rowan  immediately  moved  a  reconsideration  of  the  vote  just  giv 
en;  and  the  protest  was  then  excluded  from  the  Journals.  But  it  went 
before  the  people,  and  such  a  civic  battle  was  never  fought  in  Kentucky, 
as  that  which  followed  the  promulgation  of  that  small  document.  The 
result  was  the  election,  in  August  1825,  of  a  large  majority  of  the  House 
of  Representatives,  against  the  Re-organizing  act. 


PROTEST  OF  THE  MINORITY. 

Against    Ike   Act    Re-organzing    (he    Court  of    Appeals. 
[December,  182-4.] 


The  undersigned,  composing  tho  minority 
of  the  legislature,  who  voted  against  the  act 
"reorganizing  the  Court  of  Appeals,"  being 
about  to  separate,  perhaps  never  to  meet  on 
this  theatre  again,  cannot,  consistently  with  a 
sense  of  duty  to  ourselves,  our  constituents, 
and  the  constitution  of  our  country,  close  our 
official  duties,  without  uniting  together,  and 
with  one  voice,  respectfully,  but  firmly  and 
solemnly,  protesting  against  this  unprecedent 
ed  act,  as  unconstitutional,  unjust  and  alarm 
ing. 

The  constitution  declares,  that  "the  Judges 
of  the  supreme  and  inferior  courts  shall  hold 
their  offices  during  their  good  behavior,  and 
the  continuance  of  their  respective  courts." 
While  the  court  continues,  the  judge  is  entitled 
to  his  office,  until  removed  i'or  misbehavior. 
If  he  be  charged  with  malfeasance  in  office, 
the  constitution  requires  that  lie  shall  be  im 
peached;  but  if,  for  any  other  reasonable 
cause,  not  sufficient  for  an  impeachment,  it  be 
proposed  to  remove  him,  it  is  necessary  that 
two-thirds  of  both  branches  of  the  legislature 
should  concur  in  an  address  to  the  Governor  to 
remove  him.  The  constitution  tolerates  110 
other  mode  of  removing  the  judge  from  the  of 
fice;  this  is  denied  byjaione.  If  then!the  court 
cannot  be  abolished  or  discontinued,  the  at- 
tempt^to]/emove  the  judges  by  its  reorganiza 
tion  is  "palpably  and  obviously'^unconstitu- 
rional.  We  insist  that  the  Court  of  Appeals 
is  created  by  the  constitution,  and  therefore 
can  only  be  abolishcdjby  the  people,  in  con 
vention. 

N"o  stronger  evidence  of  this  is  necessary, 
than  the  following  extracts  from  the  constitu 
tion:  "The  powers  of  the  government  of  the 
state  of  Kentucky  shall  be  divided  into  three 
distinct  departments,  and  each  of  them  con 
fided  to  a  separate  body  of  magistracy,  viz: 
Those  which  are  legislative,  to  one;  those 
which  are  executive,  to  another;  and  those 
which  are  judiciary,  to  another."  "The^legis- 
lative  power  of  this  commonwealth  shall  be 
vested  in  two  distinct  branches,"  <fec.  "The 
judiciary  powers  of  this  commonwealth  shall 
be  Tested  in  one  supreme  court,"  <fcc.  Each  de 
partment  is  created  by  the  constitution,  for 
wise  ends — and  must  exist  as  long  as  the  con 
stitution  endures.  There  must  be  a  judiciary 
department,  as  well  as  legislative  and  execu 
tive.  The  ultimate  powers  of  that  depart 
ment  must  be  vested  in  one  court  of  appeals 
There  must  be  an  executive  department.  The 


supreme  powers  of  that  department  must  bc 
vested  in  a  chief  magistrate.  The  Governor 
can  only  be  removed  from  his  office  by  two- 
thirds,  on  impeachment — the  office  canno;  bc 
abolished — it  cannot  be  removed  from  him  by 
any  act  of  the  legislature.  The  judges  of  the 
Court  of  Appeals  can  only  be  removed  from 
their  offices  by  two-thirds,  either  by  impeach 
ment  or  address.  The  offices  cannot  be  re 
moved  from  the  judges  by  any  act  of  the  leg 
islature.  The  court  cannot  be  abolished;  and 
the  judges,  unless  removed  by  impeachment  or 
address,  are  entitled  to  hold  their  offices  during 
the  continuance  of  their  court.  There  shall  be 
a  Court  of  Appeals,  and  but  one  Court  of  Ap 
peals.  If  the  legislature  can  abolish,  or  dis 
continue  it  for  a  moment,  there  is  nothing  to 
prevent  its  abolition  forever.  But  the  con 
vention  who  formed  the  constitution  have  not 
thought  proper  to  leave  to  the  legislature  tho 
power  of  creating,  or  destroying,  or  modifying, 
or  changing  the  three  great  departments  of  the 
government;  they  are  fixed  by  the  constitu 
tion,  and  are  as  stable  and  immovable  as  that 
sacred  and  inviolable  charter.  Although  the 
governor  may  die  or  resign,  there  is  .still  an  ex 
ecutive  department,  and  it  is  the  same  depart 
ment.  And  although  the  judges  of  the  Court 
of  Appeals  may  die  or  resign,  there  i.s  etill  a 
Court  of  Appeals,  and  it  is  the  same  court. 
The  officers,  in  each  case,  may  cluing;;,  but  the 
office  is  the  same — the  executive  still  continues 
— the  court  still  continues.  This  is  the  doe- 
trine  of  the  constitution — it  is  the  doctrine  of 
genuine  republicanism — -it  "was  the  doctrine  of 
the  republicans  of  1802,  with  Mr.  Jefferson  at 
their  head.  The  republican  party  in  Congress, 
in  1802,  acknowledged  that  the  supreme  court 
could  not  be  abolished,  nor  the  judges  removed 
from  office  by  an  act  of  ordinary  legislation; 
because  the  court  was  established  by  the  con 
stitution,  and  the  judges  hold  their  offices 
during  good  behavior,  and  the  continuance  of 
their  court.  The  party  were  unanimous  in 
this  opinion,  but  insisted  that  inferior  courts, 
which  are  established  by  law,  may  be  abol 
ished  by  law,  whenever  they  become  incon 
venient  or  unnecessary. 

Our  constitution,  like  that  of  the  nation,  al 
lows  the  legislature,  from  time  to  time-,  to  es 
tablish  the  inferior  courts;  because,  experience 
might  prove  the  necessity  of  changing  those 
courts,  BO  as  to  adapt  them  to  the  condition  of 
the  country.  But  each  constitution  requires 
that  there  shall  bo  one  supreme  court,  and  tho 


ACT  RE-ORGANIZING  THE  COURT  OF  APPEALS. 


language  of  each  is  substantially  tho  same. 
Bv  each,  a  supreme  court  is  ordained  and  es 
tablished.  The  constitution  of  Kentucky 
does  not  require  that  the  inferior  courts  shall 
be  circuit  or  quarter  session  courts,  but  it  does 
declare  and  require  that  there  should  be  one 
Court  of  Appeals.  Onr  circuit  courts  did  not 
not  exist  until  established  by  the  act  of  1802. 
But  the  Court  of  Appeals  has  existed  from  the 
date  of  the  constitution.  The  first  were  created 
by  the  act  of  the  legislature;  the  other  was  es 
tablished  by  the  paramount  act  of  the  people  in 
convention'.  The  same  authority  which  cre 
ates,  may  destroy;  therefore,  the  legislature 
may  abolish  the  circuit  courts — but  the  people 
alone,  assembled  in  convention,  can  abrogate 
the  court  of  appeals. 

But  this  legislature,  as  if  above  the  constitu 
tion,  have  arrogated  the  right  to  abolish  the 
Court  of  Appeals,  by  its  "re-organization,"  and 
to  remove  the  incumbentjudgcs  from  office,  by  a 
bare  majarity,  whilst  their  "court  continues!" 
We  consider  this  not  only  an  unconstitu 
tional  and  high  handed  measure,  but  one, 
which,  if  approved,  will  prostrate  the  whole 
fabric  of  constitutional  liberty* we  do  consider 
it  a  REVOLUTION '!  We  consider  this  un 
paralleled  act,  us  <ui  attempt,  by  the  majority 
of  the  legislature,  to  consolidate  their  power, 
;md  perpetuate  their  supremacy,  over  the 
rights  of  the  minority  and -the  constitution,  by 
destroying  the  independence  and  purity,  and 
impartiality  of  the  judiciary.  And  if  it  be 
countenanced  by  the  people,  wo  believe  that 
our  courts  will  be  subservient  to  the  strong 
party,  or  party  in  power — that  we  shall  be  gov 
erned  by  factions — that  "liberty  and  equality" 
will  be  empty  sounds — that  the  ambitious  and 
the  powerful  will  hold  in  their  hands  the  des 
tinies  of  our  state — that  the  minority  will,  in 
deed,  have  "no  rights,"  and  will  be  proscribed, 
as  we  believe  .it  has  been  resolved  that  WE 
shall  be,  during  tne  present  administration — 
that  the  freedom  of  speech  and  of  conscience, 
and  the  rights  of  life,  liberty,  and  property, 
will  depend  on  the  caprices  of  a  fluctuating 
majority  of  the  legislature;  that  our  courts  will 
be  servile  and  dependent,  like  those  of  revolu 
tionary  France,  under  Robespierre,  and  those  o 
England,  under  the  Tudors  and  the  Stuarts;  anc 
that  the  legislature  of  Kentucky  will  become 
practically,  as  omnipotent  as  the  British  par 
liament. 

These  are  not  the  depictions  of  vivid  fancy 
or  the  spectres  of  a  puerile  alarm ;  we  fear  tha 
they  may  become  sober  and  solemn  realities 
If  the  people  sanction  this  act  of  the  majority 
where  is  our  security?  Their  approbation  o 
such  an  act  would  indicate  a  destitution  of  tha 
reverence  for  their  constitution,  which  is  th< 
.soul  of  every  constitution,  and  without  which 
no  peoples  ever  were  or  ever  will  be  free.  Our? 
is  not^the  language  of  prophecy,  all  of  whose 
predictions  are  yet  to  be  fulfilled — as  passing 
scenes  will  prove.  Although  we  are  not  ini 
tiated  into  the  "arcana  imperil,"  our  eyes  have 
seen  and  our  ears  have  heard  enough  to  enable 
us  to  understand  "the  signs  of  tho  times." — 
When  TTC  see  new  judges  appointed  to  super 


ede  the  old  ones,  some  of  whom  are  known  to 
lavebeen  active  and  clamorous  in  endeavors  to 
rostrate  the  court;  when  we  see,  at  the  head  of 
hese  new  judges,  the  leader  of  the  majority, 
who  has  been  charged  with  exerting  his  in 
fluence  in,  and  out  of  the  legislature,  in  caucus 
and  otherwise,  whilst  Secretary  of  State,  to 
procure  the  passage  of  an  act,  to  provide  of- 
ices  for  himself  and  friends;  when  we  hear, 
day  and  night,  of  our  chief  magistrate  inter- 
icddling,  and  endeavoring,  with  all  his  means 
f  persuasion,  to  influence  legislation;  and 
when  we  are  told  that  he  has  proscribed  all,  or 
nost  of  those  who  voted  against  him — can  we, 
as  faithful  sentinels  on  the  people's  watch- 
,owers,  tell  them,  "all's  well?"  We  cannot, 
we  will  not;  we  would  be  faithless  to  our 
selves  and  treacherous  to  them;  we  will  tell 
.hem  the  truth,  and  are  prepared  for  the  conse 
quences. 

We  will  tell  them,  that  the  new  judges  are 
virtually  pledged  to  support  the  party  in  pow 
er;  that  we  do  believe  that  they  are,  in  every 
essential  attribute  of  an  enlightened,  indepen 
dent  and  incorruptible  bench,  inferior  to  the 
Id  judges;  that  such  a  court,  organized  under 
such  circumstances,  will  not,  we  fear,  possess, 
or  even  deserve  to  posses*,  the  full  and  unhesi- 
atiug  confidence  of  the  people;  that,  to  pro 
vide  for  particular  men,  we  believe  new  and 
unnecessary  offices  have  been  created;  and  to 
consummate  the  object,  when  the  people  are  al- 
uost  sinking  under  embarrassment  and  dis- 
;ress,  the  salaries  of  the  new  judges  of  the 

ourt  of  Appeals  have  been  raised  from  four 
thousand  five  hundred  dollars  to  eight  thou 
sand  dollars! 

All  this  we  have  in  our  places  faithfully  and 
tionestly  endeavored  to  avert,  but  our  efforts 
were  unavailing.  The  judges  had  been  fully 
and  constitutionally  tried,  and  acquitted — but 
that  which  shields  the  felons  of  the  country 


is  under  the  feet  of  a  triumphant  majority,  who, 
if  not  checked  by  the  people,  may  hereafter 
exercise  all  power,  legislative,  executive,  and 
judicial;  which,  Mr.  Jefferson  and  other  patri 
ots  of  the  revolution  have  denounced  as  the 
most  intolerable  despotism.  Against  this  sort 
of  tyrrany  our  fathers  protested  in  the  Declara 
tion  of  Independence;  against  this  sort  of  ty 
ranny  they  fought,  and  bled,  and  conquered; 
and  against  it,  those  of  their  sons  who  cherish 
their  principles,  will  ever  PROTEST,  whilst 
they  have  tongues  to  speak,  or  pens  to  write. 
And  we  now  declare  to  this  legislature,  and  to 
the  people,  that  if  this  memorable  act  of  a  ma 
jority  be  submitted  to,  or  enforced,  liberty  is  in 
danger,  justice  is  in  danger,  morality  is  in 
danger,  religion  is  in  danger,  and  every  thing- 
dear  and  sacred  is  in  danger.  We  will  have  no' 
living  constitution,  and  against  bad  times  and 
bad  men  there  will  be  no  security.  This  ex 
ample  will  consecrate  every  encroachment 
that  power  can  make  on  the  rights  of  the  poor 
and  tho  humble,  the  persecuted  and  the  vir 
tuous. 


94 


I!  PROTEST  OP  THE  MINORITY. 


The  only  privilege  now  left'the  minority,  is 
to  complain  and  remonstrate,  by  appealing  to 
the  people.  We  had  thought  when  the  fatal 
act  passed,  that  we  would  retire  from  the  hall 
of  legislation,  and  leave  the  majority  to  act 
without  obstacle  or  embarrassment;  but  on 
more  mature  reflection,  we  have  deemed  it 
most  prudent  to  remain  at  our  post  until  the 
last  moment  of  the  session,  and  to  close  it  on 
our  part  by  an  united  and  candid  expression 
of  our  unqualified  opposition  to  a,  measure 
which,  if  supported,  we  believe,  strikes  the 
constitution  of  our  country  dead,  and  con 
signs  our  most  cherished  rights  to  the  vortex 
of  party  strife  and  ambition. 

Appealing,  therefore,  to  our  own  consciences, 
and  to  the  God  of  the  universe,  for  the  recti 
tude  of  our  conduct  and  the  purity  of  our  mo 
tives,  we  do  now,  for  ourselves,  our  constitu 
ents  and  our  posterity,  in  the  name  of  the  con 
stitution  and  of  justice,  enter  on  the  Journal 
this,  our  solemn  protest  against  the  late  mem 
orable  act  of  the  majority,  as  most  alarming 
and  unconstitutional. 

Members  of  the   House  of.  Representatives. 
G.  Robertson,  Charles  M.  Thruston, 


John  Green, 
Robert  Taylor, 
Archibald  Woods, 
Dabncy  C.   Cosby, 
Daniel  Breck, 
R.   B.  New, 
Bourne    Gogging, 
James  Ford, 
David  Gibson, 
C.  M.  Cunningham, 
Jas.  Simpson, 
James  True,  jr., 
W.   C.  Payne, 
B.  Hardin, 
H.  C.  Payne, 
L.  William?, 
S.  Turner, 


C.  B.  Shepherd, 
Samuel  Brents, 
Robert  Wickliffe, 
Philip  Triplett, 
John  Sterrett, 
J.  M.  McConnell, 
James  Farmer, 
G.  I.  Brown, 
William  T.    Willis, 
Clayton  Miller, 
Uriah  Gresham, 
Thomas  Kennedy, 
W.  Gordon, 
John    Bates, 
Silas   Evans, 
H.  Crittendcn, 
G.  Morris. 


Members  of  the  Senate. 


John  L.  Hickman, 
Thos.  C.  Howard, 
Chilton  Allan, 
James  Davidscn, 
Martin  Beatty, 
Sam.  W.  White, 


John  Faulkner, 
Robert  Stephens, 
Granville  Bowman, 
Martin  H.  Wickliffe, 
James  Ward, 
M.  Flournoy. 


PRELECTION, 


Although  the  people,  by  a  large  majority,  decided  against  the  re-or 
ganizing  act,  in  August,  1825 — yet,  as  only  one-third  of  the  Senators 
were  elected  in  that  year,  the  Senate  stood  equally  divided  between  the 
antagonist  parties,  with  the  advantage,  to  the  Judge-breakers,  of  hav 
ing  on  their  aide  the  casting  vote  of  Lieutenant  Governor,  Robert  B.  Mc 
Afee. 

On  the  14th  of  November,  1825,  which  was  the  8th  day  of  the  session, 
a  bill  to  repeal  the  re-organizing  act  passed  the  House  of  Representa 
tives  by  the  following  vote- 
Yeas — Mr.  Speaker,  (Robertson)  James  Allen,  Bainbridge,  Blackburn, 
Breck,  Breckinridge,  Brown,  Bruce,  Bruton,  Cowan,  Cox,  Crittenden. 
Cunningham,  Davis,  Duke,  Dunlap,  Dyer,  Evans,  Farmer,  Ford,  Gaines, 
Gibson,  Gordon,  Green,  Grundy,  Hansford,  Hanson,  Hardin,  Harvey, 
Hutchison,  James,  Logan,  Marshall,  Mayes,  McConnell,  Morris,  New, 
Owings,  Owaley,  Reed,  Skyles,  Slaughter,  Sterrett,  Street,  Sichard  Tay 
lor,  Robert  Taylor,  Z.  Taylor,  Timberlake,  Thomasaon,  True,  Turner, 
Underwood,  Waddell,  Walker,  Wilson,  A.  White,  Woodson  and  Yan- 
tis-— 58. 

Nays — Messrs.  J.  J.  Allin,  Barbee,  Carter,  Clay,  Chenowith,  Coleman, 
Coombs,  Daniel,  Elliston,  Fletcher,  Fulton,  Hall,  Haskin,  Lackey,  Lee, 
Martin,  Maupin,  M'Clanahan,  Miller,  M'Millan,  Mullens,  Napier,  Nut- 
tall,  Perrin,  Porter,  Prince,  Samuel,  Spalding,  Stephens,  Tarleton, 
Thomas,  Wade,  Ward,  E.  Watkins,  Wilcoxen,  Wingate,  and  S.  White 
—37. 

But  it  was  rejected  in  the  Senate  by  an  equal  vote,  the  Lieutenant 
Governor  voting  against  it.  On  an  amendment  striking  out  the  whole 
of  the  original  bill,  and  substituting  an  amendment  reducing  the  number 
of  judges  of  the  new  court  prospectively  to  three,  and  their  salary  to 
$1,200  the  vote  of  the  Senate  was  as-  follows: 

Yeas — Messrs.  C.  A.  Allen,  J.  Allen,  Barret,  Cockrill,  Daniel,  Daviess, 
Dudley,  Evving,  Forsyth,  Hughes,  Mayo,  P.  N.  O'Bannon,  W.  B.  O'Ban- 
non,  Shelby,  Smith,  T.  Ward,  Wood,  Worthington,  and  Yancy — 19. 

Nays — 0.  Allan,  Beatty,  Carneal,  Crutcher,  Davidson,  Denny,  Faulk 
ner,  Garrard,  Given,  Hickman,  Howard,  Locket,  Muldrow,  Pope,  Ste 
phens,^.  Ward,  White,  M.  H.  Wickliffe,  and  R.  Wickliffe— 19. 

The  House  of  Representatives  having  disagreed,  of  course,  to  that 
amendment,  the  Senate  at  once  adhered,  and  thus  the  bill  fell.  As  both 
parties  had  deferred  to  the  people  at  the  polls,  as  the  last  and  only  um 
pire,  this  unexpected  contumacy  of  the  Senate  produced  unexampled  ag 
itation. 

The  Judges  of  the  new  court — Barry,  Haggen,  Trimble,  and  Davidge, 
having  ceased  to  do  business,  and  their  clerk,  F.  P.  Blair,  who  had,  under 
their  order,  forcibly  removed  the  records  from  the  office  of  A.  Sneed,  the 
clerk  of  the  old  court,  and  having  closed  his  office,  and  refused  either  to 


9G  PRELECTION. 

surrender  the  records,  or  permit  any  litigant  or  counsel  to  have  access  to 
them,  the  House  of  Representatives,  by  a  vote  of  58  to  34,  adopted  a 
resolution  declaring  that  it  was  the  duty  of  the  old  court,  through  its 
sergeant,  Richard  Taylor,  to  regain  the  possession  of  its  records.  To  pre 
vent  the  restoration,  Blair's  office  was  guarded  by  men  and  guns,  and  no 
tice  was  given  that,  if  the  sergeant  should  attempt  to  retake  the  re 
cords,  he  would  be  fired  on.  He,  nevertheless,  having  been  ordered  to 
take  them,  had  started  to  execute  the  order,  but  was  induced  to  forbear 
by  the 'intercession  of  Mr.  Robertson,  who  met  him  on  his  way  to  Blair's 
office.  Had  he  gone  on,  he  would  probably  have  sealed,  with  his  blood, 
his  fearless  devotion  to  duty,  and  the  consequence  would  have  been  much 
bloodshed  at  the  capital,  and.  not  improbably,  civil  war  throughout  the 
State,  then  apparently  trembling- over  the  crater  of  a,  heaving  volcano. 

In  that  critical  dilemma,  the  House  of  Representatives  made'the  offer 
of  another  olive  branch,  by  resolving  that  the  Governor,  Lieutenant  Gov- 
erncr,  and  the  judges  of  the  old  and  the  new  court  ought  all  to  resign,  so 
as  to  relieve  the  country  from  the  anarchy  and  perils  likely  to  follow  the 
astounding  recuraney  of  the  Senate  and  the  new  court.  Bi;t  this  also 
failed  by  the  same  party  vote  in  the  Senate,  which  body,  al;  the  instance 
of  John  Pope,  and  some  others,  hitherto  of  the  old  court  party,  pa^--ed  a 
bill  for  •''  Compromise"  by  the  appointment  of  six  Appellate  Judges,  none 
of  whom  were  to  be  entitled  to  any  salary  unless  commissioned  by  the. 
Governor.  The  mass  of  the  old  court  part)*  looked  on  this  as  a  surrender 
— at  the  moment  of  dawning  liberty — of  the  principle  they  had  so  long  and 
in  a  manner  no  self-sacrificing,  been  struggling  to  maintain  and  estab 
lish;  and,  therefore  they  determined  not  to  tamper  with  the  bill,  but  to 
reject  it  a;-?  soon  as  offered  in  the  House  of  Representatives.  According 
ly,  as  seen  as  reported — as  it  was  by  Mr.  Pope  himself,  in  an  unusual 
manner,  by  an  introductory  speech — it  was  repudiated  by  the  following 
vote  on  the  question:  "Shall  the  bill  be  read  a  second  time?"- 

Yeas — Messrs.  Barbec,  Brown,  Ohenowith.  Coombs.  Crittendcn, 
Fletcher,  Fulton,  Hall,  Harvey,  Haskin. 'Lackey,  Lee,  Logan,  Martin, 
Maupin,  Mayes,McClanahan,  M'Cormas,  Miller,  M'Millan,  Napier,  Nut- 
tall,  Perrin,  Porter,  Prince,  Samuel,  Sander?;,  Spalding,  Thomas,  Thorn- 
asson,  Wade.  Ward,  E.  Watldns,  Wingatc,  and  S.  White — HO. 

Nays — Mr.  Speaker,  (Robertson)    Messrs.    James  Allen,  Bnlnbridge, 
Blackburn,  Bred:,  Breckinridge,  Bruce,  Bruton,  Cosby,  Cowan,  Cox,  Cun 
ning-ham,    Davis,    Duke,  Duniap,   Dyer,  Ellistcn,  Evn.n;'-:,  Farmer,  3 
Gaines,  Green,  Grundy,  Hansford,  Hanson,  Hardin,   '  >n,  James, 

Marshall.  M'Connell,  Morris,  New,  Chvings,  Owsley,  Payne.  Reed,  Skylrs. 
Slaughter,  Sten-ott,  Street,  Robert  Taylor.  Z.  Taylor, 'Timberlake,  Tur 
ner,  Underwood,  Waddle,  Walker,  .  E.  Walking  Wilson,  A.  White, 
Woodson  and  Yanti«--~5i2. 

No  other  measure  of  peace  then  remained  but  to  appeaJ  o  re  !.o 

the  people,  which  the  majority  in  tl  "  did  in  the 

following  manifesto,  written  at  the"  •.  by  Mr.  Robertson. 

This  lar'.t  appeal  was  well  sustained,  and  resulted  in  the  election  of 
old  court  majorities  in  both  houses  of  the  legislature,  which,  early  in  the 
session  of  1820,  repealed  the  re-organizing  act,  removed  the  obstructions 
i!ii\)wn  in  the  way  of  the  old  court,  and  restored  peace  and  confidence 
to  a,  long-  distracted  community. 

During  the  canvass  of  that  year,  each  parly  had   its  newspaper  or- 


PRELECTION. 


97 


gan,  established  for  the  occasion;  that  of  the  new  court  was 
called  "the  Patriot^  and  that  of  the  old  court  "the  Spirit  of  '76."  Among 
the  arguments  published  in  the  latter  were  those  contained  in  nine 
numbers,  signed  "Plebean?  and  which  succeed  the  manifesto.  These 
numbers  were  dedicated  to  the  Governor,  merely  as  the  official  organ 
and  head  of  the  new  court  party.  The  address  was,  through  him,  to 
his  party,  of  which  the  writer  considered  him  as  the  titular  impersona 
tion.  No  personal  disrespect  to  him  was  intended.  He  and  the  author 
had  been  together  in  Congress  on  terms  of  cordial  friendship.  But 
such  was  the  temper  of  the  times,  that  every  thing  offered  to  the  pub 
lic,  on  that  eventful  occasion,  must,  to  have  much  effect,  be  presented 
in  a  peculiar  tone,  corresponding  with  the  hostile  state  of  the  conflicting 
parties,  and  the  morbid  condition  of  popular  feeling.  "Plebean"  though 
high-toned  and  denunciatory,  was  not  more  so  than  the  mass  of  the 
publications  of  that  day,  and  not  so  much  so  as  many  on  both  sides.  It 
was  then  understood,  as  intended,  to  be  addressed  to  the  new  court 
party,  and  not  to  the  Governor  individually  or  personally. 


TO  THE  FREEMEN  OF  KENTUCKY. 


Felloio  Citizens:  After  a  session  of  six  weeks 
and  three  days,  the  most  eventful  in  the  an 
nals  of  our  state,  about  to  return  to  our  homes, 
and  surrender  the  trust  which  has  been  con 
fided  to  us,  it  becomes  our  painful  duty,  as 
faithful  sentinels,  to  announce  to  you  that  "all 
is  not  well."  As  the  immediate  representatives 
of  your  interests,  and  organs  of  your  will,  con 
stituting,  as  we  do,  a  large  majority  of  the 
House  of  Representatives,  it  is  our  melancholy 
province  to  tell  you,  that  those  interests  have 
been  disregarded,  and  that  will  overruled  by 
the  influence  of  your  Executive,  and  pertinac 
ity  of  a  majority  of  your  Senate.  Your  prayers 
for  our  success  in  the  great  business  of  pacifi 
cation  in  which  we  have  been  toiling,  have  not 
prevailed.  Untoward  fortune,  whom  we  could 
not  control,  and  who  was  deaf  to  your  voice, 
has  disappointed  our  anxious  and  reasonable 
expectations.  Such  was  her  magic  spell,  that 
with  all  her  united  exertions,  wo  have  been 
unable  to  re-invigorato  our  debilitated  consti 
tution,  and  restore  our  land  to  peace.  The 
circumstances  under  which  we  assembled  here 
were  auspicious,  and  we  were  exilerated  with 
the  dawn  ings  of  a  bright  aud  happy  era  for 
Kentucky.  But  this  was  the  vision  of  au  ar 
dent  patriotism— the  illusion  of  an  honest  cou- 
iidenee.  The  wild  spirit  of  anarchy  and  of 
domination,  which  has  so  long  presided  over 
our  destinies,  still  lingers  in  our  councils,  and 
controls  their  issue.  The  political  horizon, 
which  we  were  prepared  to  behold,  ore  now, 
,elear  and  serene,  is  yet  lowering  and  porten 
tous—that  cheering  sun,  whose  light  we  were 
13 


ready  to  hail,  as  the  harbinger  of  blessings  for 
our  devoted  laud,  is  still  in  eclipse.  The 
torch  of  discord,  still  unextinguished,  threat 
ens  more  extensive  desolation.  Your  judicia 
ry,  which  should  be  the  shield  of  the  weak, 
and  the  panoply  of  all,  is  still  at  the  foot  of  its 
victors,  disabled  by  the  blows  inflicted  by  a 
reckless  majority,  whose  forbearance  your  ro- 
rnonstrances  could  not  command — whose  up 
lifted  arm  your  constitution  could  not  for  one 
moment  suspend.  The  "Pretenders"  to  office 
in  the  Court  of  Appeals,  as  if  driven  to  desper 
ation  by  some  unaccountable  influence  of  chiv 
alrous  patriotism,  or  excessive  love  of  money 
and  power,  still  hang  like  an  incubus  on  tioe 
bosom  of  your  constitution,  stifling  her  voice, 
paraliaing  her  judicial  arm,  and  stagnating- 
her  most  useful  principles.  The  "new  court/' 
the  spurious  offspring  of  a  caucus,  still  clings, 
as  with  the  grasp  of  death,  to  the  judicial  col- 
umu  of  your  political  fabric,  resolved  in  its  ag 
ony  to  tear  it  down,  and  either  perish  in  itw 
crush,  or,  surviving  its  fall,  mount  the  ruins, 
and  stand  a  monument  of  its  unhallowed  tri 
umph,  and  tlio  prop  and  idol  of  its  co-operat 
ing  party.  And  recent  events  indicate  that 
this  fungus  excrescence  of  legislation  is  to  be 
nourished  not  only  by  your  treasury,  which  it 
has  already.!  robbed  of*  about  $6,000 — but,  if 
necessary,  by  the  blood  of  those  infidel  citi 
zens,  who  fthali  be  so  impudent  as  to  deny  it* 
legitimacy,  or  so  daring  as  to  refuse  homage  to 
its  usurped  authority!  This  mock  tribunal, 
defying  public  opinion,  to  which  it  bpostinglv 
appealed,  and  which  ha*  denounced  it  as  deft- 


TO  THE  FREEMEN  OF  KENTUCKY. 


titute  of  all  color  of  authority,  manifests  a 
fixed  determination  to  decide  your  causes 
without  your  consent,  or  prevent  a  decision  of 
most  of  them,  by  the  constitutional  court. 
Your  records  have  been  forcibly  withheld  from 
your  legal  clerk,  and  for  weeks' were  carried  off 
and  secreted,  so  that  those  interested  in  them 
were  denied  the  privilege  of  having  access  to, 
or  inspecting  them.  Your  Executive  declares 
war  against  all  who  shall  attempt  to  enforce 
vour  will  and  aid  your  court  in  doing  your 
business;  and  as  you  will  have  seen,  by  a  re 
port  of  a  committee  of  the  House  of  Represen 
tatives,  the  Governor's  son,  and  other  kindred 
spirits,  with  the  presumed  connivance  of  his 
Excellency,  have  made  military  preparations 
to  carry  this  horrible  threat  into  fatal  execu 
tion.  After  failing  in  an  appeal  to  your  rea 
son,  an  appeal  is  now  made  to  your  fears — and 
if  you  dare  to  defend  your  opinion,  you  are 
menaced  wiih  brutal  force — the  ultimate  rea 
son  of  despots;  and  arc  notified  that  your  de 
cision  shall  be  reversed  by  the  royal  argument 
of  the  bayonet.  If  you  consider  your  constitu 
tion  as  worth  preserving — if  you  value  it  as 
you  should  do,  supremely — if  you  look  to  it  as 
the  palladium  of  your  liberty — if  you  intend  to 
govern  yourselves  and  carry  on  your  govern 
ment;  b*y  moral  and  not  by  physical  power — 
look  around  you  and  behold  your  impending 
danger — and  by  a  prompt  display  of  your  en 
ergies,  right  your  selves.  Do  not  be  lulled  by 
a  delusive  security.  The  danger  is  imminent 
and  near  your  doors.  Although  it  has  not  en 
tered  your  dwellings — although  you  may  not 
have  felt  its  grasp  or  seen  its  footsteps;  a  gi 
gantic  power  is  stalking  abroad,  which,  if  not 
promptly  and  resolutely  met,  will  soon  under 
mine  the  foundations  of  your  constitution,  and 
impose  on  you  a  yoke,  which,  however  gilded 
or  light,  will  be  to  you  and  your  children  the 
yoke  of  moral  and  political  bondage. 

It  is  not  to  reiterate,  with  all  its  aggravations, 
the  story  of  your  wrongs  and  your  sufferings, 
that  we  now  appeal  to  you,  but  only  to  vindi 
cate  ourselves  from  the  awful  responsibility  of 
this  solemn  crisis,  and  to  call  on  you  as  the  on 
ly  supreme  power  in  the  commonwealth,  to  as 
sert  your  rights^  and  by  a  proper  exertion  of 
your  authority,  to  avert  the  calamities  with 
which  it  threatens  to  visit  and  desolate  our 
country.  What  you  have  already  endured  un 
der  the  administration  of  politicians,  who  were 
^elf-styled  republicans,  and  exclusive  friends  of 
the  people,  is  seen  by  all  and  felt  by  all.  You 
have  observed  the  pVogress  of  the  controversy, 
which  has  so  long  divided  and  paralized  our 
once  happy  and  distinguished  state,  and  have 
but  too  deeply  felt  its  demoralizing  and  ruin 
ous  effects — you  have  seen  the  two'contending 
parties,  the  one  struggling  to  preserve,  the 
other  to  destroy  our  constitution,  exasperated  j 
to  an  extremity,  that  to  many  was  alarming, ' 
to  all  humiliating.  You  have  witnessed  the 
distraction  of  neighborhoods  and  of  fami 
lies — the  destruction  of  confidence — the  de 
preciation  of  the  paper,  and  consequent  occa 
sional  banishment  of  the  metal ic  medium — the 
inconstancy,  injustice  and  unconstitutional  ity 


of  party  legislation;  you  have  seen  with  regret, 
that  this  unnatural  and  inglorious  strife  had 
so  engrossed  the  public  attention  and  enlisted 
the  popular  feeling,  that  the  great  interests  of 
internal  improvement  and  education  have  been 
totally  neglected — and  that  the  regulation  of 
our  currency  and  our  revenue,  and  the  amelio 
ration  of  our  civil  and  criminal  laws  have 
scarcely^  been  attempted;  you  have  seen  men 
struggling  for  power  and  office,  regard 
less  of  the  means  of  attaining  them — sanctify 
ing  all  their  claims  by  a  seeming  devotion  to 
the  liberty  of  the  people,  and  the  supremacy 
of  their  will,  and  verifying,  by  their  conduct, 
the  Jesuitical  maxim,  that  the  end  justified  the 
means;  you  have  seen  them  endeavoring  to  de 
grade  your  most  venerable  and  long  tried  ser 
vants,  only  to  supplant  them  and  fill  their 
places.  You  have  heard  them  denounce  your 
patriots  as  tories,  your  old  soldiers  as  traitors. 
You  have  beheld  them  carrying  on  a  fanatical 
crusade  against  your  appellate  judges,  because 
they  were  pure,  firm,  and  enlightened  jurists — 
because  they  felt  compelled  by  the  obligations 
of  their  oaths,  and  the  clearest  convictions  of 
their  official  duty,  to  defend  the  magria  charta 
of  your  rights,  arid  enforce  private  contracts, 
according  to  the  law  of  the  contracts;  for  de 
ciding  that  if  A  should  lend  13  $1,000  in  gold 
or  silver,  on  faith  of  a  law  which  provided  that 
all  contracts  for  specie  might  be  enforced  in 
three  months,  B  could  not  afterwards  consti 
tutionally  withhold  the  payment  for  two  years, 
without  the  consent  of  A — or  discharge  the  li 
ability  in  any  thing  of  less  value  than  $1,000 
in  specie — a  decision  which  is  sustained  by 
the  common  sense  and  common  justice  of  the 
whole  Union — a  decision  which  is  enjoined  by 
your  constitution,  and  one  which  is  fortified 
by  the  concurrent  opinions  of  every  state  in 
the  United  States,  where  the  question  has  oc 
curred.  You  have  heard  the  venerable  judges 
of  your  court  of  appeals  vilified  and  traduced — 
charged  with  designs  on  your  liberties — called 
King^s — tyrants,  triumvirs — arraigned  for  im 
puted  hostility  to  the  occupant — when  their 
accusers  knew  well  that  they  had  ever  been 
the  occupants'  most  steadfast  friends,  and  had 
sustained  your  occupant  laws  by  about  fifty 
different  decisions,  many  of  which  have  been 
rendered  since  Green  and  Biddle—  and  when 
some  of  their  accusers  were  deeply  interested 
in  prostrating  the  occupant  system,  and  as  a 
fit  means  found  it  necessary  first  to  bear  down 
by  awe,  or  expel  by  threats,  those  honest  men 
who,  in  defiance  of  all  consequences,  were  de 
termined  to  defend  this  only  rampart,  which 
defended  our  homes  and  firesides.  Humbly 
pursuing  the  noiseless  tenor  of  their  way,  you 
have  seen  these  persecuted  judges  arraigned, 
tried,  and  acquitted,  by  a  political  party;  and 
then,  strange  to  say,  you  saw  the  same  dorni- 
naiit  majority,  in  vour  last  legislature,  finding 
that  the  judges  would  not  be  subservient  to 
their  party  interests,  and  that  they  would  not 
be  driven  from  the  bench  by  abuse,  and  could 
not  be  removed  by  impeachment  or  address. 
(the  only  modes  authorized  by  you  in  your  con 
stitution,,  and  which  they,  by  their  previous 


TO  THE  FREEMEN  OF  KENTUCKY. 


conduct  had  admitted  to  be  the  only  modes) 
pass  an  act  to  abolish  the  "court  of  appeals," 
ordained  and  required  always  to  exist  by  your 
written  will  in  convention ;  "the  avowed  object 
of  which  sacrilegious  act  was  to  remove  the 
judges,  who  are  entitled  to  hold  their  offices  as 
long  as  the  court  of  appeals  shall  exist — and 
the  inevitable  and  ultimate  effect  of  which,  if 
sanctioned  by  you,  would  be  to  pull  down  one 
of  the  three  great  pillars  which  uphold  your 
political  temple — and  subvert  the  very  founda 
tions  on  which  it  is  reared,  and  on  which  all 
your  security,  and  all  your  hopes  and  happi 
ness  are  built.  Asa  necessary  consequence  of 
this  mad  career,  we  shall  have  to  deplore  that 
Kentucky  is  not  now,  either  politically  or  mor 
ally,  what  she  once  was — that  with  all  her 
endowments — with  all  her  pre-eminent  re 
sources,  physical  and  intellectual,  she  has 
been  retrograding,  whilst  her  neighbors,  with 
inferior  natural  blessings,  have  been  progres 
sing  rapidty  in  their  march  to  wealth  and  pow 
er.  That  she,  emphatically  "the  land  of  the 
free  and  the  home  of  the  brave,"  has  exhibited 
scenes  of  violence  degrading  to  her  honor — 
whilst  they  have  been  peaceful,  prosperous, 
and  happy-  All  this  we  foresaw,  and  have 
endeavored  to  avert,  by  warning  you  of  your 
danger — by  urging  a  reverence  for  your  consti 
tution,  by  recommending  industry,  economy, 
morality,  inviolability  of  contracts,  stability 


principles  and  consolidate  our  common  happi- 
icss. 

We  assembled  here  as  your  messengers  of 
peace,  to  announce  your  will,  tender  the  Olive 
Branch,  and  prechum  to  those  (if  there  were 
any  such)  who  loved  their  own  power  more 
than  your  welfare,  that  there  should  be  an  am 
nesty  for  the  past,  and  security  for  the  future. 
We  felt  not  as  victors;  AVC  desired  no  triumph; 
cherishing  the  most  fraternal  feelings,  we  were 
prepared  to  make  an  offering  ou  our  country's 
altar,  of  all  our  resentments  for  our  multiplied 
personal  injuries,  and  to  remember  the  scenes 
of  the  past  only  to  profit  by  their  afflictive  les 
sons.  Inspired  with  these  sentiments,  and 
backed  by  your  will,  to  which  the  opposing 
party  had  always  appealed  as  the  supreme 
law,  we  had  a  right  to  expect,  that  the  storm  of 
party  would  cease  longer  to  rage,  and  that  ere 
now  our  tempest  beaten  bark,  having  outlived 
the  whirlwind,  would  have  swung  to  her  an 
chor  and  reposed  on  the  bosom  of  the  great 
deep,  the  people's  enlightened  and  rectified 
wilt 

But  our  expectations  have  been  disappointed 
and  your  will  frustrated.  At  the  opening  of 
our  session,  our  ears,  instead  of  being  sa 
luted  with  the  mild  and  mellifluous  notes  of 
peace,  were  shocked  with  the  shrill  clan- 
guor  of  war,  blown  from  the  Executive  trump; 
instead  of  hearing  recommendations  of  order 


and  justice  in  legislation;   we  believed   that  j  and  submission  to  your  decrees,  we  are  left 


these  were  the  only  sources  of  your  piosperity; 
hut  other  men  and  other  principles  prevailed, 
and  obtained  a  transient,  triumph  over  us  and 
our  principles:  over  the  constitution  and  over 
you;  which  triumph,  if  not  arrested,  would 
have  tended  to  the  dissolution  of  society  and  the 
unhingement  of  all  constitutional  government. 
By  the  alarming  act  of  last  session^  attempting 
to  abolish  your  court  of  appeals,  you  were 
roused  to  a  sense  of  your  clanger,  and  of  the 


only  to  infer  from  the  language  and  temper 
of  his  Excellency,  in  his  late  annual  message, 
that  he  defied  public  opinion,  the  great  lever  of 
the  republic,  and  that,  as  the  guardian  of  the 
people's  rights,  he  was  resolved  to  resist  by 
force  the  people's  will,  and  maintain  by  amis 
his  triumph  over  the  people's  constitution . 
We  learn  from  this  document,  that,  although 
you  had  decided  against  the  re-organizing  act 
'  of  last  session,  still  he  determined,  by  the 


objects  of  those  who  so  long  amused  you 'with  ployment  of  all  the  means  subservient  to  his 


professions  of  their  love,  and  with  expedients 
for  your  relief.  With  all  your  experience  of 
the  past  and  forebodings  of  the  future,  the 
great  subjects  of  controversy,  brought  at  last  to 
a  decisive  issue,  were  by  all  parties  referred  to 
your  final  arbitrament/  The  peculiar  charac 
ter  of  the  question  rendered  its  decision  inef 


station,  to  prevent  your  judges  from  doing  your 
business,  and  to  enforce  this  unconstitutional, 
void,  and  pestiferous  act,  until  "the  Senate" 
(not  the  constitution)  should  declare  it  void 
by  repealing  it;  and  he  was  even  so  bold  as  to 
intimate,  in  terms  which  cannot  be  misunder 
stood,  tliat  if  the  act  should  be  repealed,  he 


fectual,  by  any  other  tribunal  than  that  of  the  !  should  still  not  suffer  the  judges  of  the  court 
great  body  of  the  people,  whicli  must  of  neces-  of  appeals  to  adjudicate,  unless  they  would 
sity,  from  the  structure  of  our  government,  be  i  surrender  their  commissions  and  accept  new 
the  ultimate  arbiter  of  all  fundamental  politi- 1  ones  from  him!  Who  was  prepared  for  such  a 
cal  questions,  particularly  such  as  involve  the  I  message?  5n  what  age  and  country  were  a 
powers  and  existence  of  two  co-ordinate  de-  j  free  and  enlighted  people  addressed  in  such  a 
partments,  and  perhaps  the  active  existence  ;  manner,  from  such  a  source,  and  on  such  an 
of  the  constitution.  You  have  deliberately  i  occasion  V  We  believe  it  is  not  transcended  in 
and  solemnly  given  your  decision  at  the  polls,  I  the  annals  of  Henry  the  VIII,  Charles  the  I,  or 
on  the  constitution  Avhich  you  yourselves  i  James  the  II .  What!  the  Governor  of  the  peo- 
made.  That  decision,  whatever  it  might  be,  I  pie,  to  trample  on  the  constitution  of  the  peo- 
the  constitutional  party  felt  bound  and  had  pie — menace  by  physical  force,  to  resist  the 
resolved  to  submit  to;  and  we  had  a  right  to  wishes  of  the  people,  and  to  denounce  a  war 
expect  that  all  who  regarded  your  interests,  or  i  against  the  people!!  IJnawed  by  this  Avar 
their  own  personal  good,  would  cheerfully  ac- !  speech,  we  lost  no  time  in  making  our  decision, 
quiesce  and  sacrifice  all  pride,  all  selfishness, !  and  asserting,  in  a  becoming  mannnr,  your 
on  the  altar  of  concord,  and  re-unite  cordially,  rights.  On  the  3rd  day  of  the  session  a  reso- 
as brethren  of  the  same  language,  and  religion,  lution  passed  the  House  of  Representatives  by 
Mad  couiitry,  in  endeavors  to  re-establish  sound  a  vote  of  GO  to  3G,  declaring  that  it  was  tho 


100 


TO  THE  FREEMEN  OF  KENTUCKY. 


opinion  of  that  house  and  a  large  majority  of 


you 


that  so  much  of  the  obnoxious  act  of  last 


session,  as  attempted  to  abolish  the  court  of  ap 
peals  and  create  another  court,  was  unconsti 
tutional  and  totally  void — and  that,  judges 
Boyle,  Owsley,  and' Mills,  are  the  only  judges 
of  the  court  o'f  appeals,  and  should  be  so  re 
spected  by  the  people  and  all  their  public 
functionaries.  This  was  our  response  for  you, 
and  in  your  name,  to  the  proclamation  of  the 
commander  in  chief.  Here  we  might  have 
stopped.  If  the  "midnight  act"  be  unconsti 
tutional,  it  is  not  law — it  is  a  nonentity,  and  it 
is  not  necessary  U/repeal  it.  The  constitution 
is  the  supreme  law,  and  all  legislative  acts  con 
trary  thereto  are  void.  You  have  deliberately 
decfded  by  more  than  sixty  hundredths,  that  it 
is  in  conflict  with  the  constitution ;  and  to  what 
power  on  earth  shall  an  appeal  be  taken  from 
your  judgment?  To  the  Governor  or  the  Lieu 
tenant  Governor?  To  Senators,  who  disregard 
your  most  formal,  written  instructions?  God 
forbid.  But  it  is  foryou  to  determine  whether 
vou  belong  to  them,  or  they  to  you;  whether 
your  government  was  instituted  for  your  hap 
piness,  or  their  exclusive  enjoyment.  Suppos 
ing  that  it  might  be  more  satisfactory  to  many 
to  repeal  the  reorganizing  act,  than  rely 


dimple  declaration  of  it*  unconstitutionalitv, 
the  adoption  of  the  resohition  was  immediately 
succeeded  by  a  repealing  bill,  which  passed 
the  Hoiif-o  of  Representatives  by  a  large  ma 
jority,  but  in  the  Senate,  by  the  casting  vote  of 
your  Lieutenant  Governor,  wa*  amended  by 

*•  •  - 1  •      •  •  •       i 


attributable  to  you,  as  to  excuse  the 
which  is  offered,  by  a  portion  of  your  pubTfc 
servants,  for  refusing  to  conform  to  your  will. 
so  emphatically  expressed?  If  it  be  excusable 
to  disobey  your  instructions  now,  on  the 
ground  that  you  did  not  understand  what  you 
did,  when  and  how  will  it  be  ascertained  that 
you  are  right  and  have  not  been  deluded? 
Never,  except  when  your  opinions  shall  be  in 
accordance  with  the  interests  of  those  who 
choose  to  doubt  your  capacity  always  to  de 
cide  irrevocably  on  subjects  fundamentally  im 
portant  to  your  welfare.  You  have  heard 
much  about  the  right  of  instruction,  from  the 

What  do 


party  who  now  virtually  deny  it.  Wh 
"instruction  men"  now  tell  you?  Nothing 
than  this,  that  when  they  are  not  suffered  to 
instruct  you  how  to  instruct  them,  they  will 
not  obey  your  instructions,  because  you  are  al 
ways  wrong  when  you  do  not  agree  with  them. 
This,  when  undisguised  and  nakedly  exposed 
as  it  now  is,  by  their  late  conduct,  can  be  con 
sidered  nothing  less,  practically,  than  an  at 
tempt  to  subvert  the  elementary  principle  of 
all  popitlar  governments. 

Wehold  these  principles  to  be  fundamental, 
and  thsse  truths  to  be  self-evident  —  that  free 
government,   being   instituted   by  the  people, 
and  for  their  benefit,  they  are  the  final  judges 
of  till  political  questions,  the  only  umpires  who 
can   adjust  irreversably,  collisions  of  the  de- 
a-   partrnenis,  which  endanger  the  equilibrium  of 
of  {the  constitution;  that  they   alone  can  decide 
who  are  the  constitutional  incumbents  of  their 


substituting  another  re-organizing  j 
and  liable  to  all  the  same  objections!  i 


and  when 


the  House  of  Representatives  disagreed  to  this 
substitute,   (as  they   were  bound   io   do)  the 


principle,  j  supreme   court,  and   their  decision  on  such  a 
'question,   whenever   and   however  expressed, 
from  political    necessity,  should  have  uncou- 
trolable  effect,  and  cannot  be  questioned  or  re- 


Senate,    in    the    iirsi-  instance,    adhered,  and  (sisted  by  their  functionaries  or  public  agents, 
thereby  closed  the  door  on  all  conciliation  and  j  without  disturbing  the  harmony  a 


andfrustrat- 

confercncc  on  that  bill,  leaving  the  other  house  ing  the  benificent  and  republican  ends  of  our 

government;  that   every  attempt  to  elude   or 
control    the    people's    will  on   such  ultimate 


no  other  alternative  than  to  adhere  also,  which 
they  promptly  did.  and  *o  the  bill  fell.     The 


Senate,  with  an  apparent  reverence  for  your 
opinion,  and  submission  U>  .your  instructions, 
professed  a  willingness  by  their  conduct  to  re 
'  "  act  t  '  '' 


people's 

question,!)}'  those  to  whom  they  have  confided 
any  portion  of  their  power,  is  usurpation,  and 
deserves  their  severest  and  most  unqualified 


peal  the  act  in  obedience  to  your  command;  {reprehension:  That  the  court  of  appeals  s 
fnit,  when  brought,  to  the  test,  Avould  do  so  on- 1  ordained  by  the  constitution,  and  can  never 
lv  on  the  condition  that  w<\  faithless  to  you,  'cease  for  one  moment  to  exist,  as  long  as  that 
and  treacherous  to  our  oaths,  would  offer  up  charter  possesses  one  principle  of  vitality; 


our  constitution  as  a  propitiatory  sacrifice, 
and  co-operate  with  them  in  the  unholy  scheme 
of  eluding  your  instruction,  nnd  enacting  the 
very  identical  principle  which  you  have  pro 


scribed    as   unconstitutional,   an 
have  elected  us  to  extirpate. 
The  minority  asserted  (and   it 


that  the  judges  of  that  court  are  entitled  to  hold 
their  offices  during  the  existence  of  the  court, 
or  in  other  words  the  constitution,  unless  re 
moved  by  impeachment  or  address,  with  the 


1  which  you  votes  of  two-thirds  of  both  branches  of  the  leg 
islature;  and,  ns  necessary  corollaries,  that  the 

has  been  fre-  court  of  appeals  cannot  he  abolished  by  act  of 

quently  re-echoed)  that  you  hnvr  not  decided  assembly,  nor  the:  judges  thereof  removed  by 
at  the  polls,  th;it  any  of  this  memorable  act  is  j  less  than  two-thirds  of  the  legislature;  that 
repugnant  to  the  constitution.  They  charge  the  re-organizing  act  of  last,  session  did  not. 
that  you  have  been  deceived  and  led  away  by  j  abolish  the  court  of  appeals  nor  suspend  its* 
improper  influence's.  \Vo  know,  ns  well  as  vou  j  existence;  that  it  is  the  indispensable  and  in- 
do,  that  this  charge  is  unjust ,  and  \ve  believe  |  disputable  duty  of  the  judiciary  to  pronounce 
that  such  a  subterfuge  will  be  unavailing,  and  acts  of  the  legislature  to  be  void,  when  the 
treated  by  you  as  it  deserves.  Are  you  not  judges  have  a  clear  conviction  that  they^are 
capable  of  free  government?  Did  you  not  in-  !  unconstitutional,  and  to  enforce  the  constitu- 
vestigate  the  subject  referred?  Were  not  theition  as  the  paramount,  the  people's  law, 
elections  tested  by  it?  Can  such  a  destitution  j  against  the  opposing  acts  of  their  servants; 
of  principle  or  of'  common  sagacity  bo  justly 'that  an  act  of  the  legislature  contrary  to  the 


TO  THE  FREEMEN  OP  KENTUCKY. 


101 


constitution  is  not  a  LAW,  and  the  citizen  who 
gives  it  effect  is  a  trespasser,  and  the  Execu 
tive  who  enforces  it  by  the  sword  or  the  bayo 
net  is  guilty  of  HIGH  TREASON!  that  an  un 
constitutional  act  is  invalid  before  as  after  its 
repeal,  and  that  after  the  people  have  decided 
it  to  be  unconstitutional,  all  who  aid  in  endeav- 


we  will  not  give  it  up  fo  the  winds  wnich 
howl  around  it,  they  must  still  rave  on,  and 
you  are  not  allowed  to  have  PEACE. 

On  the  first  occasion,  when  the  most  vital  of 
those  principles  have  been  brought  to  a  prac 
tical  and  decisive  test,  some  of  those  very 
men,  who  have  declaimed  loudest  in  their  fa- 


ors  to  execute  it  should  be  considered  public  i  vor,  and  heretofore  almost  Deified  them,  shrink 
enemies  ef  the  people,  and  their  constitution;  J  back  from  them,  as  the  instruments  of  their  de- 
that  it  is  not  necessary  to  repeal  an  unconstitu-  struction,  and  now,  being  fairly  weighed  in  the 


tional  enactment,  but  only  desirable  in  order  to 
take,  from  desperadoes  and  usurpers,  all  color 
of  pretext  for  tneir  wanton  licentiousness  under 
it;  that  Messrs.  Barry,  Haggin,  Trimble  and 
Davidge,  have  no  judicial  offices  to  resign — 
and  that,  if  they  attempt  to  adjudicate,  since 
the  people  have  decided  that  they  are  pretend- 


balance,  are  found  wanting.  Such  are,  in  our 
opinion,  those  of  your  servants  who  have  been 
solemnly  instructed  by  their  constituents,  thai 
the  "new  court"  is  unconstitutional,  and  who, 
by  defying  those  instructions,  endanger  the 
peace  and  safety  of  the  state.  They  say  bv 
their  conduct,  that  they  are  the  organs  of  your 


without  right,  they  will  be  guilty  of  usur- !  will,  and  as  you  did  not  foresee  the  passage  of 
pation,  and  if  they  attempt  to  execute,  by  J  the  obnoxious  act  when  you  elected  them,  and 
force,  any  of  their  assumed  powers,  they  will  I  instruct  them  to  vote  against  it,  they  will  not 
be  guilty  of  levying  war  against  this  common-  J  hear  yon  until  they  call  on  you  to  elect  them 
wealth;  that  the  inviolability  of  our  constitu- !  again!  T~ 


tion  is  essential  to  the  life,  liberty,  and  prop 
erty  of  every  citizen — and  that  if  you  sanction 
the  invasion  of  any  of  its  principles,  you  there 
by  endanger  the  whole  structure;  that  each  of 
t.he  three  departments  is  created  by  the  consti 
tution,  and  whenever  either  becomes  the 
creature  of  another,  the  theory  of  the  constitu 
tion  is  subverted,  and  the  government  revolu 
tionized;  that  the  essence  of  a  constitution 


again!  That  an  unconstitutional  act,  althougl 
void,  must  be  enforced  on  the  people,  perhaps 
to  their  ruin,  until,  after  successive  elections, 
they  have  passed  on  a  majority  of  the  Sena 
tors,  who  aided  in  enacting  it,  and  command 
ed  a  repeal  of  that,  which  in  convention  they 
have  declared  shall  never  have  existence. 
Here  you  see  a  bold  stroke  at  the  verv  root  of 
your  liberty.  They  say  farther,  that  although 
you  have  decided  that  the  "new  judges"  are  IK 

1  I         1 ,,  1  1        ,.  i  i         •  ,        .1 


consists  in  this  only,  that  it  is  obligatory  upon  I  judges,  and  although  the  message  admits  that- 
all  the  people  and  all  their  agents — and  that  j  they  are  odious,  yet  they  shall  go  on  "through 
every  act,  by  whomsoever  done,  contrary  there-  scenes  yet  untried,"  and  shall  not  forbear  from 


to,  is  void  and  can  have  no  effect;  that  no  one 
feature  of  the  constitution  can  be  changed,  ex 
cept  by  the  whole  people,  in  convention,  and 
that  the  constitutional  independence  of  each 
department  on  either  of  the  others,  is  essential 


further  usurpations,  unless  the  "old  judges," 
alarmed  by  their  threats  or  seduced  by  their 
offers,  resign  and  "give  up  the  ship."  "  Thev 
even  say  that  you  have  not  decided  that  thes< 


worthy  men  are  judges.     Have  you  not  decided 

to  the  efficiency  of  the  constitution,  and  indis-  j  that  they  have  not  been  "legislated"  out  of  of- 
pcnsablo  to  the  liberty  andsecurity  of  the  citi-  j  fice?  Who  are  your  judges,  if  they  arc  not? 
zen.  The  foregoing  is  the  outline  of  our  doc-  If  the.  act  which  attempted  to  remove  them, 


trines  on  the  great  subject  before  us  —  it  is  the 
summary  of  our  creed.  We  believe  it  will 
stand  the  test  of  time  and  the  scrutiny  of  ages. 
It  lias  been  stamped  with  the  approbation  of 
the  most  enlightened  statesmen;  and  for  t.he 
cause  of  universal  liberty,  we  pray  that  it  may 
become  universal.  It  will  be  defended  by  the 
real  patriot  to  the  last  extremity,  even  to  the 
stake;  it  contains  principles  which  are  the 
' 


of  the  poor,  the  strength  of   the  weak 


shi'eld 

and  weakness  of  the  strong  —  principles  which 
are  the  bulwarks  of  constitutional  liberty  and 
the  best  hopes'of  mankind;  they  constitute  the 
textbook  of  the  real  republican,  and  whenever 
they  shall  cease  to  exact  your  homage,  you 
will  cease  to  worship  at  the  shrine  of  the  true 
Goddess  of  Liberty,  and  the  altar  and  the  God 
dess  will  sink  together  at  the  feet  of  the  mon 
ster  of  anarchy  and  uproar.  The  most  sacred 
of  these  principles  are  now  arraigned  by  some 
as  aristocratic,  and  are  rudely  and  insidiously 
assailed.  We  call  on  you  to  reverence  and  up 
hold  them.  Defend  your  constitution,  and  it 
will  protect  you  in  every  trial;  to  re-establish 
it  on  broad  and  permanent  foundations  is  our 
first  and  only  wish.  For  this  alone  we  have 
struggled  —  for  this  we  came  here;  and  because 


be  void,  it  follows  as  inevitably  as  the  effect 
from  the  cause,  that  they  are  as  much  in  office 
since,  as  before  the  date  of  that  act.  It  was  nof 
men,  but  principles  for  which  you  contended: 
when  you  wish  to  remove  judges  from  office, 
you  will  do  it  according  to  the  constitution,  by 
two-thirds;  when  you  come  to  determine  wheth 
er  men  in  office,  claiming  to  be  judges,  are 
in  office,  a  majority  alone  must  decide.  It  is 
not  a  judicial,  but  a  great  political  question, 
which  no  other  power  on  earth  can  settle;  and 
the  very  hinge  on  which  the  whole  govern 
ment  swings,  is  broken,  if  the  decision  of  a  ma 
jority  at  the  polls  be  not  final  and  controlling. 
But  "we  have  heard  that,  notwithstanding  its 
unconstitutionally,  the  act  of  last  session  is 
law,  and  must  be  considered  so  until  one  or 
two  Senators  shall  find  it  their  interest,  or  feel 
it  their  duty  to  consent  to  its  repeal.  This  is 
neither  the  doctrine  of  reason,  nor  the  senti 
ment  of  republicanism.  When  an  inexpedient 
constitutional  act  passes,  it  becomes  the  law  of 
the  land,  and  remains  such  until  the  whole  leg 
islative  authority  shall  repeal  it.  But  an  un 
constitutional  act  is  never  the  law  of  the  land. 
The  "constitution  is  the  supreme  law  of  tho 
land,"  and  all  acts  "contrary  thereto  are 


102 


TO  THE  FREEMEN  OF  KENTUCKY. 


VOID.'  Wo  have  been' a'dmomshed  on  this 
subject,  to  beware  of  the  fate  of  the  federal 
party  in  1801.  Let  those  who  gave  the  ad 
monition  take  it  home  to  themselves— they 
might  profit  by  it,  before  it  be  eternally  too 
late.  Let  them*  recollect,  that  the  downfall  of 
the  federal  administration  was  provoked  by 
the  persevering  attempts  of  the  then  dominant 
party,  to  enforce  the  alien  and  sedition  acts,  in 
defiance  of  the  people's  will,  after  they  had 
been  denounced  by  public  sentiment  as  un 
constitutional.  The  Governor  and  his  friends 
should  take  care,  lest  by  the  same  career,  they 
are  brought  to  the  samc'erid.  And  they  should 
never  forget  that  the  strongest  charge  of  the 
republican  party,  against  Judge  Chase,  of  the 
Supreme  Court,  was  that  he  refused  to  declare 
the  alien  and  sedition  acts  unconstitutional. 
To  decoy  us  from  our  allegiance  to  the  con 
stitution,  many  artful  stratagems  have  been 
employed  bv  the  "new  court'*  party.  They 
have  appealed  to  our  fears  and  our  hopes,  to 
enlist  us  under  their  banner,  and  help  to  sanc 
tify,  in  effect,  their  usurpation.  It  Avas  pr 


their  department,  would  thereby  achieve  the 
object  for  which  they  have  employed  so  many 
unjust  and  unconstitutional  means,  and  gain  a 
triumph,  when  they  are  signally  defeated,  and 
their  conduct  condemned — that  the  unconsti- 
tutionality  of  the  re-organizing  act  must  be 
settled,  and  that  any  compromise  would  be 
inadmissible,  which  should  tacitly  recognize 
its  validity — that  a  Governor,  who  is  a  devoted 
partizan,  should  not  be  trusted  with  the  pow 
er  of  filling,  at  this  time,  offices  so  important  to 
the  welfare  of  the  country;  but  if  a  change  be 
desirable,  the  people  alone  should  effect  it,  by 
a  re-election  of  the  appointing  power,  so  that 
the  appointments  may  be  wise  and  satisfacto- 
to  them,  and  so  that  no  principle,  moral  or 
constitutional,  may  be  violated;  that,  contend 
ing  for  principles",  not  men,  those  principles 
must  be  established  in  such  a  manner  that  the 
recurrence  of  another  such  attack  upon  them, 
as  that  which  has  long  afflicted  our  country, 
will  be  discountenanced, before  we  could  treat 
for  compromise;  that  we  could  not  compromise 
our  constitution  or  oaths;  that  no  hire  of  office 


posed  first  by  his  Excellency,   and  then  often   or  threat  of  force  should  ever  tempt  or  alarm  us 


reiterated  in  each  branch  of  our  assembly,  that 
those  who  are  the  judges  of  the  court  of  ap 
peals  by  the  constitution,  and  those  who  claim 
to  be  its  judges  by  the  void  act  of  the  legisla 
ture,  should  all  resign;  and  we  "Were  assured 
that,  if  we  would  co-operate  in  the  caucus 
business  of  making  judges,  and  caucus  the  old 
judges  out  of  office,  the  Governor  would  nomi 
nate  four  "new  judges/'  two  from  each  party. 
This  we  promptly  rejected.  We  considered  it 
inadmissible,  for  many  reasons,  which  it  is  not 
necessarv  now  to  detail,  but  among  which,  we 
will  repeat  to  you  the  following: 

By  agreeing,  we  should  have  recognized  the 
validity  of  the  new  mode  of  breaking  judges — 
the  very  thing  which  you  sent  us  to  explode. 
The  four  judges  proposed  would  have  been 
judges  of  the  "new  court,"  when  you  have 
said  that  there  shall  be  no  such  court;  they 
Avould  have  been  judges  under  the  late  act  of 
assembly,  and  not  judges  under  the  constitu 
tion.  We  had  no  power  to  make  judges — the 
constitution  devolves  that  duty  on  the  Gover 
nor  and  Senate — the  example  would  have 
been  deleterious  and  unconstitutional  in  its 
tendencies;  we  had  no  right  to  control  the  will 


)f  the  judges, 
signation)  nuu 


Their  resignation  (to  be 

voluntary,  not  compulsory; 


we  would  not  abandon  them,  because  they  had 
not  obandoned  the  constitution — because  they 
are  virtuous,  able,  honest  men — the  friends  of 
justice,  morality,  and  of  law.  That  to  recog 
nize  a  court,  by  forcing  the  judges  to  resign,  is 
liable  to  all  the  objections  urged  against  the 
new  mode  of  last  winter — that  the  judges  could 
not,  consistently  with  their  own  honor,  or  their 
duty  to  the  great  principle,  for  which  they 
liav'e  so  long-  .stood  on  the  watchtower,  now  de 
sert  their  posts — that,  before  they  should  re 
sign,  justice  should  be  done  to  their  abused 
characters,  and  their  department  should  be  re 
established  firmly  on  its  constitutional  foun 
dation — that,  if  they  resign  now,  those  who 
have  so  long  persecuted  them,  and  assailed 


to  become  recreant  from  the  cause  in  which  we 
have  all  so  much  and  so  long  suffered — and, 
trampling  down  the  constitution  at  the  eve  of 
its  triumph,  divide  the  spoils  of  its  subjuga 
tion.  If  we  had  thus  "compromised,"  then 
ncleed  we  might  be  called  ambitious  and  faith- 
ess.  The  proposition  was  moreover  most  un 
equal — there  Avas  no  reciprocity;  we  Avere 
called  on  to  give  up  every  thing,  and  were  of- 
'ered  nothing  in  exchange;  the  "new  judges" 
nave  nothing  to  resign;  and  should  Ave  havo 
oeen  invited  to  take  on  ourselves  the  responsi 
bility  of  purchasing,  ut  so  high  a  price,  their 
submission  to  your  will?  Their  party  had  no 
right  to  ask  of  \is  any  sacrifice;  all  that  was 
necessary  for  peace,  was  that  they  should  ac 
quiesce  in  your  decision,  on  their  OAVH  appeal. 


By  re 


the  act  and  submitting  to  you, 
th'ey  wouldliave  surrendered  nothing  but  ob 
stinacy.  There  .would  have  been  no  sacrifice 
f  principle.  But  if  Ave  had  agreed  to  their 
proposition,  AVC  should  have  given  up  all  that 
Ave  had  contended  for,  and  all  that  you  had  de 
cided.  If  they  did  not  intend  to  submit  to 
your  aAvard,  Avhy  make  the  appeal?  And  Avhen 
will  they  submit?  Never.  Then  from  our 
consciences  and  our  doors  be  all  the  conse 
quences  of  their  resistance. 

Their  other  propositions  of  compromise 
Avere,  Avith  only  slight  variations  of  form,  of 
the  same  cast,  and  liable  to  all  the  same  ob 
jections.  That  Avhich  Avas  pressed  most,  Avas 
that  the  Judges  should  resign,  and  the  bench 
in  future  be  filled  Avith  six  "IICAV  judges;" 
and  Avould  you  believe  it — a  part  of  the  pro 
posal  was  that  the  old  judges  should  be  three 
of  the  six;  Boyle.  Chief  Justice!  Yes,  felloAV- 
citizens,  it  is  true  it  Avas  proposed  to  xis,  if  AA-O 
would  only  give  up  the.  question,  compromise 
the  constitution,  and  induce  the  judges,  who 
have  groAvn  grey  in  your  service,  to  reign  at 
the  bidding  of  the  Governor — that  those  three 
old  men,  Avhoiu  t.hev  have  denominated 


TO  THE  FREEMEN  OP  KENTUCKY. 


103 


••Kings,"  might  re-ascend  the  throne,  and  by  at  the  opening  and  at  the  close  of  our  session. 


his  Excellency  be  crowned. 

This  is  susceptible  of  no  commentary;  it 
-peaks  volumes  which  have  riot  until  now 
been  unsealed.  You  see  who  are  hunters  for 
office,  and  lovers 
these  things,  and 
worth  preserving;  its  title  may  stand,  but  its 
living  spirit  will  be  extinguished,  and  the 


of  the   people.     Sanction 
vour    constitution  is   not 


that  he  will  preserve  peace  by  making  war? 
Your  guardians  wrong  you.  It  is  time  to  es 
cape  irom  minority  and  assert  the  right  of 
manhood.  All  that  is  necessary,  is  that  your 
representatives  shall  tell  you  by  their  acts,  not 
by  their  speeches. — "Your  will  and  not  ours 
be  done/'  Then  and  not  till  then,  we  shall 
have  peace.  Then  our  state  may  re-ascend 


right  of  suffrage,  freedom  of  conscience  and  I  the  proud  eminence  from  which  she  has  fallen? 
security  of  life,  would  all  tremble  on  the  inter-  j  Then  we  shall  be  once  more  brethren — Ken- 
ested  and  capricious  will  of  a  favored  few.  To  j  tuckians;  and  then  the  eye  of  philanthropy  may 
prevent  this  catastrophe,  the  minority  appealed  |  soon  see,  emerging  from  the  flood  of  party  fu- 
to  you  last  winter;  to  avert  it,  you  pressed  to  ry,  the  verdant  summit  of  that  region,  which 
the  polls  last  August;  and  to  warn  you  of  its  we  hope  is  even  yet  destined  to  be  the  seat  of 
approach,  we  now  address  you  in  tones  firm,  science,  reason,  justice,  liberty  and  law,  in- 
and  in  language  bold  as  becomes  the  mornen- 1  separable  companions. 

tons  occasion.  But  if,   by  acceding  to  any  of  the  terms  of 

compromise  which  have  been  offered  to  us,  we 
had  acknowledged  (as  we  must  have  done) 
that  your  "old  judges'*  are  not  in  office;  if,  by 


Desirous  to  terminate  this  unnatural  and  un 
profitable  warfare,  we  have  done  every  thing 
which  our  duty  to  principle  and  to  you  would 
allow.  We  reiterated  the  proposition  which 
was  made  by  the  minority  last  winter,  to  save 
the  country  from  the  mischiefs  of  the  ''midnight 
act."  It  was  then  spurned;  it  is  received  no  in 
better  now.  Nothing  will  satisfy  the  other 


party   short  of  a  virtual  acknowledgment  of 


thus  uniting  with  the  hostile  party  in  forcing' 
your  judges  from  the  bench,  in  any  mode  not 
permitted  by  your  constitution ;  if,  by  aiding 
in  imposing  on  you  all  the  burthen  and  con 
fusion  of  a  "new  court"  of  six  judges,  and  al 


so  acknowledging,  by  requiring  the  old  judges 


their  right  to  remove  the  judges  of  the  appellate  jto  be  recommissioned,  the  constitutionality  of 
Live  act;  and  the  admission  the  "act"  which  you  have  decided  to  be  uncon- 


court  by  a  legislative 
of  the  judges,  that  they  are  indebted  to  their 
bounty  for  their  offices.  We  then  proposed, 
as  our  ultimatum,  that  the  Representatives, 


Senators,   Judges, 
Governor,     should 


Lieutenant  Governor    and 
all    resign,   as    the    only 


mode  of  enabling  you  to  settle  all  controversy 
without  obstruction  or  delay.  The  resolution 
offered  for  this  purpose  passed  the  House  of 
Representatives  by  a  vote  of  75  to  16.  But 
the  Governor,  Lieutenant  Governor,  and  their 
party,  who  profess  so  much  anxiety  to  quiet 
the  country;  who  are  themselves  the  only  ob 
stacle,  and  who  boast  of  so  much  regard  for 
you  and  your  rights,  cannot  consent  that  you 
shall  exercise  this  salutary  and  necessary  pow 
er.  They  are  apprehensive  that  you  will  err 
and  become  distracted  by  commotion.  Thus 
you  see  that  the  patriots  who  are  so  solicitous 
that  the  judges  should  resign,  are  unwilling  to 
set  the  good  example,  although  requested  by 
an  almost  unanimous  vote  of  your  immediate 
representatives.  Yet,  these  men  say  that  they 
do  not  love  office,  that  they  are  for  the  people 
and  the  people's  will,  while  they  will  neither 
submit  to  that  will,  nor  get  out  of  the  way, 
that  the  people  may  elect  those  whom  they 
prefer,  and  who  would  do  their  will.  Re 
flect  on  this;  hear  the  response  of  the  judges 
to  the  Senate's  invitation  to  them  to  resign, 
and  then  doubt  longer,  hesitate  longer,  if  you 
can.  To  dismiss  the  compromise — by  analyz 
ing  all  the  propositions,  you  will  see  that  the 
basis  of  ours  was  the  recognition,  that  the  "old 
judges"  are  in  office;  of  theirs,  that  they  are 
out  of  office.  The  precise  question  you  have 
decided.  Is  this  agony  of  the  body  politic 
never  to  be  "over?"  Is  there  any  inherent  de 
fect  in  our  social  or  political  organization?  j  our  professions;  and  if  our  principles,  and  our 
Or  whence  this  sad  fate?  Why  does  your  gov-  characters  and  conduct  cannot  repel  such  ac- 
ernor  in  substance  declare  and  ^declare  again,  ( cusations,  give  them  your  credence.  One  of 


stitutional — thereby  sanctifying  the  means 
employed  so  long  to  degrade  your  judiciary, 
and  subvert  its  constitutional  independence, 
and  render  it  subservient  to  faction,  and  the 
plaything  of  ambition;  if,  by  thus  surrender 
ing,  at  the  moment  of  success,  all  the  sacred 
principles  for  which  you  have  been  so  long 
contending,  for  the  petty  and  unworthy  pur 
pose  of  elevating  to  the  honors  and  the  emolu 
ments  of  appellate  judges,  three  of  those  who 
have  denied  the  constitutional  creation  and  in 
violability  of  the  Supreme  Court,  and  thus 
crown  them  with  victory,  and  consecrate  their 
doctrines;  if,  by  these  means  alone,  we  can 
make  peace — there  can  be  NO  PEACE.  If 
we  had  thus  compromised  your  will  and  your 
constitution,  we  might  proclaim  peace,  peace, 
but  there  would  be  no  peace.  Such  a  peace 
would  be  the  peace  of  death — the  death  of  your 
constitution — of  the  hopes  which  it  inspires, 
and  the  liberty  which  it  secures.  Your  gov 
ernment  will  never  be  guided  by  reason,  until 
the  head  of  your  judiciary,  placed  firmly  on  the 
eminence  raised  for  it  by  the  constitution, 
shall  be  able  to  hold  up  JUSTICE  to  the  rich 
and  the  poor,  and,  as  if  planted  on  the  isthmus 
between  conflicting  elements,  dispense  her 
impartial  awards,  unawed  by  the  storms  that 
rage  below,  and  unshaken  by  the  waves  that 
break  at  its  base.  To  secure  this  great  ob 
ject  has  been  our  only  aim — this  is  our  only 
hope— and  for  our  endeavors  for  success  in 
such  a  cause,  we  have  been  charged  by  the 
organ  of  the 
and  hypocri 


j  opposing  party,  with  "knavery 
isy."  We  shall  not  degrade  our 
selves  or  insult  your  dignity  by  retort.  We 
wish  to  be  judged  by  our  deeds,  and  not  by 


104 


TO  THE  FREEMEN  OF  KENTUCKY. 


us,  now  80  years  old,  fought  in  the  revolution 
for  his  country's  independence,  and  assisted 
in  convention  to  establish  the  two  constitu 
tions  of  Kentucky,  to  secure  that  indepen 
dence.  Is  not  this  some  little  pledge  of  his 
sincerity,  and  of  the  fidelity  of  those  who  are 
associated  with  him  in  endeavoring  to  save  the 
constitution? 

When  did  we  ever  attempt  to  violate  the 
charter  of  your  rights'?  When  did  we  ever 
persecute  distinguished  and  faithful  officers, 
to  supplant  them  in  office?  When  did  we  or 
ganize  plans  for  turning  out  of  office  your  cir 
cuit  court  judges,  and  clerks,  <fcc.,  to  fill  their 
places  with  our  friends,  to  whom  we  had 
promised  them?  Let  those  whose  consciences 
are  not  reproached  with  these  things,  charge  us 
with  ambition.  *>Ve  are  ambitious,  but  our  on 
ly  ambition  is  to  exalt  the  character  of  our 
state,  and  give  quiet  and  security  to  her  peo 
ple;  to  inculcate  habitual  reverence  for  the 
principles  of  rational  liberty;  to  give  security 
to  right,  stability  to  justice,  confidence  to  vir 
tue;  and  as  we  hope  to  be  immortal,  the 
highest  aim  of  our  ambition,  in  relation  to  our 
selves,  is  to  deserve  well  of  our  country,  to 
obtain  the  good  opinion  of  the  good  and  the 
wise,  and  ensure  the  approbation  of  our  own 
consciences.  Whatever  may  be  the  issue  of 
this  controversy,  we  shall  enjoy  the  consola 
tion  of  having,  throughout,  done  our  duly 
faithfully  and  honestly;  and  whatever  others 
may  be  prepared  to  do,  as  for  ourselves,  we 
will  defend  the  constitution,  and  cling  to  it  as 
the  plank  which,  in  the  wreck  of  every  thing 
else,  will  save  us  and  ours,  in  WAR  as  well  as 
in  PEACE. 

But  this  constitution  is  yours;  you  made  it; 
it  is  in  your  keeping.  Do  with  it  as  you  deem 
be,st  for  j  our  welfare.  But  recollect,  that  it  is 
the  best  guardian  of  that  liberty  which  is 
your  richest  inheritance,  and  which  it  is  your 
duty  to  transmit  unimpaired,  to  those  who 
shall  come  after  you.  1  our  judges,  although 
they  have  received  no  compensation  during  this 
year,  and  expect  to  receive  none  during  the 
next,  instructed  by  your  votes,  and  by  their 
own  sense  of  duty,  will  continue,  without 
longer  suspension,  to  do  your  business,  unless) 


overcome  by   the  governor's    army.    Protect 
them  by  your  countenance,  and  all  is  safe. 

You  can  LOOK  DOWN  all  opposition. 
Your  voice  can  stay  the  paricidal  arm,  and  re 
deem  your  constitution  from  the  fiery  ordeal, 
unhurt.  Do  your  duty;  stand  to  your  integri 
ty;  do  not  be  drawn  from  your  "ground;  the 
"new  court"  will  soon  expire  for  want  of 
NOURISHMENT,  and  your  constitution  will 
resume  its  sway,  and  good  old  times  will  soon 
return.  But  suffer  yourselves  to  be  alarmed 
or  wearied  into  inaction;  allow  your  constitu 
tion  to  be  bartered  away  by  your  public 
agents — compromise  the  sacred  principles 
which  you  have  already  consecrated,  or  leave 
them  unsettled — and'  then  you  will  have  no 
safety,  no  peace,  no  constitution.  On  you 
hangs  the  fate  of  that  constitution,  paving 
done  all  that  we  could  do,  we  submit  the  is 
sue  to  GOD  and  the  PEOPLE. 


G.  Robertson, 
James  Allen, 
S.H.Woodson, 
Robert  Taylor, 
John  Green, 
Samuel  Hanson, 
H.  C.  Payne, 
S.  Turner, 
C.  M.  Cunningham, 
James  True,  jr., 
J.  R.  Underwood, 
R.  J.  Breckinridge, 
M.  P.  Marshall, 
J.W.Waddell, 
John  P.  Gaines, 
John  Harvev,  jr., 
Z.  Taylor,    * 
James  Ford, 
Alexander  Ried, 
A.  Dunlap, 
T.  Hanson, 
J.  J.  Crittenden, 
Silas  Evans, 
James  Wilson. 
G.  Street, 
John  Logan, 
Wm.  Hutcheson,  jr., 
Henry  Timberlake., 


John  M.  McConnell, 
Richard  Taylor, 
James  R.  bkiles, 
Alexander  Bruce., 
Samuel  M.  Brown, 
John  B.  Duke, 
Thomas  C.  Owings, 
John  H.  Slaughter, 
J.  W.  Bainbridge, 
W.B.Blackburn, 
R.  B.New, 
Alexander  White, 
Samuel  Grundy, 
John  Cowan, 
B.  E.  Watkins, 
W.  Gordon, 
B.  Hardin, 
James  Farmer, 
John  Yaiitis, 
Daniel  Breck, 
David  Bruton, 
Jeremiah  Cox, 
Joel  Owsley, 
John  Sterrett, 
David  Gibson, 
Thomas  James, 
Daniel  Mayes, 
Cvrus  Walker, 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


•'A  subject's  faults,  a  subject  may  proclaim, 
A  monarch's  errors  are  forbidden  game." 

In  presuming  to  address  you  in  the  un- 
courtly  style  of  a  freeman,  I  shall  make  no 
apology.  1  shall  not  attempt  to  propitiate 
your  regard  by  flattering  your  vanity,  nor 
shall  I  be  deterred  from  my  duty,  by  any  false 
notions  of  reverence  for  your  official  title.  I 
am  a  plain  man,  unacquainted  with  the  adu 
lation  of  courts.  My  speech  is  blunt,  my 
course  direct. 

In  regal  governments,  the  dogma,  that  "a 
king  can  do  no  wrong"  is  consecrated  as  a  po 
litical  axiom,  and  even  as  a  tenet  of  religious 
faith.  The  inviolability  of  the  king's  person, 
the  infallibility  of  his  judgment,  and  his  legal 
impunity,  are  the  elements  of  his  vast  and 
gothicpile  of  prerogative.  Homage  is  the  ex 
acted  tribute  of  every  tongue:  none  are  allow 
ed  to  censure.  He  is  above  the  law.  Public 
opinion  expends  its  force  on  the  ministry.  The 
minister  is  made  the  scape  goat  of  all  the  sins 
of  a  bad  administration.  When  the  subject 
feels  the  weight  of  oppression,  he  denounces 
the  minister,  but  his  mouth  is  loyal  to  his  kjag. 
The  galley  slave,  whilst  he  tugs  at  the  oar, 
suffers  no  murmur  against  the  crown  to  escape 
his  lips — complaiBt  would  be  high  treason 
against  majesty;  and  even  whilst  his  heart  is 
bursting  with  anguish,  his  tongue  mechanical 
ly  ejaculates,  "God  save  the  King." 

But  you,  sir,  are  not  yet  a  king— nor  am  I, 
thank  God,  your  subject.  You  are  the  respon 
sible  servant  of  a  free  people;  I  am  one  of  those 
people:  and  although  one  of  the  least  worthy, 
yet,  as  you  will  find,  not  the  least  FREE.— 
The  pre-eminence  of  your  station  secures  to 
you  uo  peculiar  title  to  personal  impunity. 
It  gives  you  no  claim  to  infallibility.  It  can 
neither  make  your  heart  more  pure,  nor  your 
head  more  wise.  It  is  a  high  station,  and  full 
of  glory  when  well  filled.  Its  incumbent  may 
be  either  a  blessing  o»-  a  curse  to  his  country. 
When  he  is  virtuous  and  intelligent — firm  yet 
wise — inflexible  yet  decent — When  he  is  such 
a  man  as  a  Governor  ought  to  be,  he  is  hon 
ored — his  administration  is  benificent,  and  his 
country  flourishes  and  is  happy.  But  when 
he  prostitutes  his  patronage  to  selfish  ends — 
when,  by  abusing  his  trust,  he  relaxes  the 
law,  and  encourages  vice,  injustice,  and  crime- 
when,  instead  of  being  the  venerable  and  au 
gust  umpire  between  conflicting  parties, 
and  the  pure  minister  of  executive  justice,  he 
is  the  dupe  and  pander  of  a  little,  restless 
faction — he  blasts  his  country  and  his  own 
fame,  and  all  his  power,  aided  by  the  flattery 
of  all  his  expectants  and  parasites,  cannot. 
14 


stifle  the  voice  of  truth,  nor  stop  his  ears  against 
its  dread  tidings.  It  is  mighty,  and  will  pre 
vail.  You  may  bribe  the  venal  by  promises 
of  preferment;  you  may  instigate  the  vicious, 
by  the  hope  of  impunity;  you  may  alarm 
the  timid,  by  the  terrors  of  your  authority;  but 
a  free  and  enlightened  people  will  not  always 
submit  to  oppression. 

They  are  intelligent  and  will  escape  from 
delusion.  They  are  virtuous  and  will  put 
down  vice.  Your  corrupt  presses  may  groan 
with  the  falsehoods  and  slanders  which  they 
publish  weekly — through  these  sewers  you 
and  your  adherents  may  continue  to  throw  off 
your  feculence  on  the  pure  characters  of  the 
old  soldiers  of  the  revolution,  and  the  most 
virtuous  men  of  the  age,  but  the  day  of  retri 
bution  will  come.  It  will  come  speedily  and 
with  vengeance.  A  free  press  will  arraign  you 
before  the  bar  of  public  opinion,  and  your 
doom,  which  is  now  sealed,  will  be  there  pro 
claimed. 

The  law  is  above  you.  It  can  make  a  gov 
ernor,  as  well  as  the  most  humble  private  cit 
izen,  feel  its  lash  or  its  halter.  You  may  talk 
of  war  and  bloodshed — you  may  contemn  the 
people's  voice,  and  deride  their  opinions,  but 
the  time  is  not  far  distant  when  you  will  hear 
and  may  TREMBLE.  You  are  responsible  to 
public  opinion.  You  shall  feel  at  least  the 
censorship  of  the  press. 

Do  not  be  alarmed,  sir.  I  am  not  about  to 
become  your  biographer.  My  purpose  is  more 
humble.  I  propose  only  to  preserve  a  few 
fragments,  as  memorials  of  your  worth.  I  shall 
not  draw  the  minute  traits,  and  give  the  char 
acteristic  tints  to  your  portrait.  I  shall  only 
attempt  to  exhibit  the  outline.  Even  this  I 
could  not  be  induced  to  do,  if  you  stood  alone. 
But  in  sketching  you,  I  shall  necessarily  asso- 
ate  with  you  on  the  canvass,  a  group  not  en 
tirely  uninteresting  to  the  people  of  Kentucky. 
Your  office  entitles  you  to  peculiar  notice. 

You  have  identified  your  name  with  "re 
lief"  and  "judge  breaker."  You  are  the  osten 
sible  leader,  though,  as  I  know,  only  the  ''Au 
tomaton"  of  a  desperate  faction,  whose  aim  is 
despotic  power,  whose  means  are  licentious - 
ness  and  anarchy,  and  the  tendencies  of  whose 
principles  are  a  dissolution  of  the  union,  and  a 
destruction  of  all  the  ties  of  morality  and  jus 
tice.  In  your  patronage,  this  party  live,  move, 
and  have  their  being.  Your  office  is  prostitu 
ted  to  their  ends.  You  are  their  organ. — 
Through  you  ther  speak  and  act.  Therefore 
it  is  proper  to  address  you,  when  my  object  is 
to  expose  the  ambition  and  counteract  the  de 
signs  of  your  party.  In  your  image  they  will 


106 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


see  their  own .     I  address  them  through  you  as 
their  official  impersonation. 

In  a  series  oi'  letters  which  I  propose  to  ad- 
d.iess  you,  (not  in  a  spirit  of  dedication,)  I 
shall  take  an  occasional  notice  of  your  official 
conduct:  shall  endeavor  to  expose  the  misrep 
resentations  and  fallacies  of  your  late  messa 
ges;  and  incidentally  touch,  as  1  fro  along,  oth 
er  topics — such  us  the  origin  of  the  relief  sys- 


good  one.  It  is  inferior  to  that  of  no  state  in 
the  union.  The  people  of  Kentucky  are  intel 
ligent;  their  soil  is  prolific,  their  climate  pro 
pitious:  in  all  these  particulars  they  are  emi 
nently  blessed.  Yet  these  people — so  much  fa 
vored  by  a  benificent  Heaven — so  much  signal 
ized  by  their  peculiar  natural  capacities — are 
oppressed  with  debt;  their  currency  deprecia 
ted;  their  constitution  disregarded;  their  laws 


tern — the  character  and  motives  of  its  projec-   powerless;  their  lives  and  their  property  inse 
tors — the  means  employed  to   sustain  it,  & 


«fec.  I  shall  attempt  110  method — my  only  aim 
is  truth — and  that  I  will  tell,  whatever  may  be 
the  consequence!*.  I  sliall  deal  with  you  plain 
ly.  I  shall  "naught  extenuate,  nor  aught  set 
down  in  malice." 

My  feelings  towards  )ou  are  not  those  of  a 
private  enemy— I  cherish  such  feelings  towards 
no  human  being.  Your  conduct  has  been  such, 
that  I  consider  you  a  public  enemy  to  the  con 
stitution,  and  1 'shall  treat  you  as  one.  I  shall 
not  intrude  into  your  private  concerns.  I  have 
no  private  grievance  to  redress — it  is  my  coun 
try's  wrongs  of  which  I  shall  complain.  I 
have  no  -personal  object.  I  have  no  hope — no 
fears  for  myself.  I  desire  no  office;  you  have 
none  that  1  would  accept.  I  am  no  landhold 
er,  stock-jobber,  or  money  dealer.  I  owe  no 
monev:  there  is  very  little  due  to  me;  I  am  not 
rich;  1  inherited  no  fortune — my  only  legacy 
was  a  sound  constitution,  and  *( as  I  trust)  "a 
good  conscience.  1  never  had  any  agency  in 
making  or  borrowing  from  a  bank.  I  was 
born  in  Kentucky,  and  here  I  wish  to  die.  All 
1  ask  of  the  government  is  security;  all  I  de 
sire  of  my  fellow  men  is  justice;  I  am  no  aris 
tocrat — no  patrician;  I  am  the  friend  of  equal 
rights  and  equal  laws;  of  industry,  fidelity, 
the  inviolabilty  of  contracts;  of  moral  hon 
esty  and  constitutional  liberty.  1  am  a  repub 
lican;  poor,  but  not  a  bankrupt;  the  friend  of 
the  honest  poor  and  of  the  honest  rich;  the 
friend  of  religion  and  of  law;  of  order  and  of 
PEACE.  1  am,  sir,  (pardon  the  egotism)  what 
vou  ought  to  be,  an  honest  man;  and  what 
you  affect  to  be,  "THE  PEOPLE'S  FRIEND." 
A  PLEBIAN. 


TO    THE    GOVERNOR  ELECT  OF  KEN 
TCCKY.— No.  n. 

"  When  the  viitnons  are  in  authority  the  peopl 
rejoice:  whf.n  the.  wicked  bear  rule  the  people 
mourn." 

The  vices  or  virtues  of  an  administration 
are  known  by  its?  fruits.  Whenever  distress 
pervades  any  country;  whenever  vice  predom 
inates  over 'virtue;  whenever  licentiousness? 
and  crime,  wanton  with  impunity;  whenevei 
the  moral  and  industrious  ;nv  discontented 
with  their  lot,  and  alarmed  for  their  security 
it  is  undeniable.,  that  whoever  may  be  at  thf 
heail  of  affairs,  or  whatever  the  form  of  gov 
ernment,  there,  is  cither  .some  inherent  dofec 
in  the  constitution,  or  some  perversion  of  its 
principles  by  mal- administration.  The  con 
stitution  of  Kentucky  is  acknowledged  to  be  a 


cure;  themselves  driven  to  the  verge  of  civil 
war;  industry  deprived  of  its  incentives  and 
lespoiled  of  its  rewards;  fraud  sanctified  by 
.aw;  the  improvident  living  on  the  provident; 
the  idle  fattening  on  the  sweat  of  the  laboring; 
dishonest  bankruptcy  considered  honorable, 
solvency  criminal;  refusing  to  pay  debts,  a 
Dadgeof  patriotism;  attempting  to  exact  pay 
nent,  called  oppression;  the  punctual,  laboring 
citizen,  denominated  aristocrat,  tory;  the  lazy 
and  dissolute,  who  live  by  fraud  or  stealth, 
auded  as  patriots,  whigs,  republicans;  trav 
elers  murdered  for  their  money,  and  no  pun 
ishment  inflicted;  citizens  murdered  weekly, 
and  no  murderer  hung;  the  fines  inflicted  on 
those  who  support  "the  powers  that  be,"  remit 
ted;  the  honest  alarmed;  the  upright  misera 
ble;  the  state  degraded.  This  is  a  faithful, 
but  very  imperfect  picture  of  the  condition  of 
our  country.  Who  so  blind  as  not  to  see  the 
causes  of  all  these  effects,  in  an  unjust  andun- 
.onstitutional  administration  of  the  govern 
ment?  Principles  arc  abstract,  political  liber 
ty  is  speculative;  civil  liberty  is  practical. 
The  best  form  of  government/  corruptly  and 
foolishly  administered,  will  be  oppressive. 

The  English  constitution  under  Charles  II, 
had  attained  more  theoretic  perfection  than  it 
ever  before  possessed;  but  it  was  never  practi 
cally  less  free  or  more  oppressive.  This  is  at 
tributable  alone  to  the  vices  of  the  king  and 
his  party.  The  constitution  of  Kentucky  is  the 
oretically  one  of  the  best  the  world  ever  saw ; 
and  during  your  reign,  no  people  were  ever 
more  cursed  with  bad  laws  and  obstructions 
of  justice,  than  we  have  been. 

Is  it  not  because  we  have  in  Kentucky  a 
Charles  the  II,  and  his  "CABAL?"  Charles 
and  his  party  were  called  "THE  COURT 
PARTY!"  tfhe  patriots  who  opposed  their 
vices,  their  luxury  and  their  perversions  and 
denials  of  justice",  were  called  "THE  COUN 
TRY  PARTY."  The  king's  party  were  call 
ed  "the  court  party,"  because  they  were  cour 
tiers;  because  they  were  the  adherents  of  the 
king.  They  exercised  a  corrupt  influence 
over  the  judges,  and  controlled  the  adminis 
tration  of  justice.  "The  country  party"  were 
so  denominated,  because  they  advocated  the 
independence-  of  the  judges  and  the  purity  of 
judicial  administration,  and  were  opposed  to 
the  king  and  his  court.  Your  party  in  Ken 
tucky  i-  "the  court  party" — I,  .sir,  belong  t<> 
"the  country  party."  Your  party  advocate  the 
doctrines  of  "the  court  party" 'in  England — 
mine,  those  of  "the  country  party."  Your 
party  are  the  adherents  of  the  executive,  and 
the  enemies  of  a  pure  and  independent  judi 
ciary;  mine  are  the  advocates  of  the  people, 


TO  THB  GOVERNOR  ELECT  OP  KENTUCKY. 


107 


their  constitution,  and  their  constitutional  ju 
diciary.  You  call  yourselves  whigs!  Your 
principles  are  those  of  the  old  tories  of  Eng 
land.  You  call  us  tories.  Ours  are  the  true 


ffhose  who  are  unwilling  to  live  by  honest 
industry  must  live  on  the  people's  money; 
they  must  have  offices,  or  rather  pensions. — 
Those  who  have  acquired  splendid  fortunes  on 


principles  of  genuine,  old-fashioned  whigism.   credit,  must  live  on  the  property  and  labor  of 
The  whigs  of  England  advocated  the   su- 1  other  men;  and  the  honest  man  who  dares  U> 
premacy  of  the  constitution  and  laws,  and  in-   think  that  the  property  should  be  enjoyed  by 
sisted  on  the  judges  being  so  far  independent   those  to  whom  it  justly  belongs,  i*  called  "a 


as  to  be  able  to  uphold  the  principles  of  rnagna 
charta.  The  tories  were  the  defenders  of  the 
supremacy  of  the  king  over  the  judges,  and  of 
the  dependence  of  judges  on  his  will.  Such 
were  the  whigs  and  tories,  court  party  and 
country  party  in  England,  and  such  they  are 
in  Kentucky. 

You  may  steal  the  title  of  whigs,  you  may 
arrogate  that  of  country  party,  and  you  may 
attribute  to  us  what  you  will,  but  you  cannot 
disguise  the  counterfeit;  you  cannot  alter  the 
essence  of  things.  Yours  are  tory  principles, 
your  policy  that  of  the  court  party  of  Charles 
the  II,  and  you  ought  not  to  repudiate  the 
name.  You  and  your  "cabal"  have  brought 
distress  and  disgrace  on  your  country.  The 
vice  is  yours  and  theirs,  and  not  that  of  the 
great  body  of  the  people,  or  of  their  constitu 
tion.  Had  a  more  wise  and  upright  man 
been  at  the  helm  of  our  affairs,  we  should  now 
be  blessed  with  "peace  and  plenty;"  we  should 
be  one  people,  and  a  cheerful,  moral,  happy 
people.  But  it  has  been  our  hard  fate  to  oe 
under  your  sway;  and  your  pestiferous  princi 
ples  have  scattered  discord  and  vice  over  the 
land.  Like  the  tree  of  Java,  your  official 
breath  is  pestilence,  and  moral  desolation  sur 
rounds  you .  You  have  had  the  power  to  do  in 
finite  good;  you  have  done  irreparable  mis 
chief.  You  might  have  been  the  father  of  the 
people  and  been  blessed;  you  have  been  their 
worst  enemy,  and  may  be  cursed. 

Accident  made  you  Governor;  your  temper 
has  made  you  an  active  and  frantic  partizan. 
You  have  endeavored  to  intimidate  the  judi 
ciary,  and  have  persecuted  its  friends;  you 
have  endeavored  to  prostitute  the  judgment 
seat  to  factious  interests;  you  have  treated  as 
enemies  those  who  did  "not  assist,  to  make 
you  Governor.  You  have  appointed  to  office, 
men  notoriously  unfit  and  incapable.  By  an 
abuse  and  perversion  of  your  pardoning  pre 
rogative,  you  have  frustrated  the  ends  of  pub 
lic  justice,  and  encouraged  disorder  and 
crime.  You  have  menaced  war  against  the 
people  for  not  submitting  as  "faithful  subjects" 
to  your  will.  You  have  denied  justice,  by  ob 
structing  the  courts.  You  have  endeavored  to 
alienate  the  affections  of  the  people  from  the 
general  government,  and  disalfect  them  with 
the  principles  of  the  Union.  You  have  em 
ployed  your  patronage  to  influence  elections. 
You  have  made  frequent  and  direct  attempts 
to  influence  legislation.  You  have  virtually 
denied  the  people  the  right-  of  self-government, 
unless  they  do  as  you  do,  and  think  as  you 
think.  All  this,  and  much  more,  have,  you 
and  your  "cabal"  done  and  tried  to  do.  Your 
object  is  self-aggrandizement.  "RELIEF," 
'•OFFICE,"  "MCKNKY,"  these  are  your  watch 
words. 


uShylock 


aristocrat."    Are  these  things 


right?  Do  you  expect  by  such  means  to  exalt 
yourself,  or  the  state  over  which  you  rule4? 
,  sir;  no.  You  know  you  can  do  neither. 
Justice  is  the  attribute  of  God,  and  shall  be 
respected?  No  government  ever  long  flour 
ished,  whose  policy  was  not  dictated  by  jus 
tice.  No  community  can  prosper,  which  loves 
not  justice.  No  man  can  ever  enjoy  honest 
fame  who  does  not  do  justice  and  revere  its 
precepts.  The  government  whose  maxim  is 
justice,  is  loved  by  its  friends  and  respected  by 
its  foes.  The  magistrate  who  is  just,  like 
Aristides  or  Cato,  is  revered  and  canonized. 
But  the  public  functionary  who  sports  with 
justice,  or  prostitutes  its  ministry  to  the  unhal 
lowed  purpose  of  his  own  or  his  party's  advan- 
t  ige,  is  the  scourge  of  society  and  the  enemy  of 
mankind. 

A  man  may  be  celebrated  either  for  his  wis 
dom  or  his  folly,  his  virtues  or  his  faults.  It 
will  be  vour  destiny  to  be  very  famous.  You 
will  long  bo  remembered.  Your  name  has  al 
ready  acquired  very  extensive  notoriety. 

In  other  states,  and  even  here,  your  name 
has  been  signalized  by  associations  with  such 
execrable  principles  and  unfortunate  incidents, 
as  to  become  synonirnous  with  almost  any 
thing  that  is  wrong  or  reproachful.  You 
cannot  be  ignorant,  sir,  of  this  fact. 

This  has  all  grown  out  of  the  events  of  your 
eventful  administration.  Your  party  will  be 
the  burthen  of  many  a  future  legend,  the  theme 
of  a  long-lived  and  garrulous  tradition.  In 
spite  of  you,  it  will  go  down  to  posteritv.  You 
are  denied  the  consolations  of  oblivion.  The 
official  eminence  to  which  you  have  crawled, 
denies  you  th«  refuge  of  obscurity.  Your 
character  is  impressed  indellibly  on  the  face, 
and  will  be  imprinted  conspicuouslv  on  the 
history  of  Kentucky.  Erostratus  burnt  the 
temple  of  Ephesus,  and  has  emblazoned  his 
name  in  the  light  of  the  conflagration.  Nero's 
is  written  with  the  blood  of  the  Romans  whom 
he  slaughtered,  and  is  us  immortal  as  the  re 
cords  of  his  crimes.  Yours  will  be  more  hum 
ble,  but  not  less  memorably  advertised;  it  will 
be  inscribed  on  the  broken  columns  of  Ken 
tucky's  fame,  associated  with  ''relief  laws!" 
'  judge-breakers'"  and -.If  your  of 
ficial  portrait  shall  never  be  delineated  by  the 
pencil  of  a  Titian,  or  the  chisel  of  a  Phidias — 
nevertheless,  in  the  wasted  strength  of  your 
state,  in  her  violated  constitution,  in  the  tri 
umphs  of  vice  and  injustice  which  mark  your 
executive  career,  abundant  materials  will  bi* 
furnished  to  give  to  the  page  of  history  the  im 
press  of  your  likeness.  (Jut  of  the  ruins  of 
your  country's  peace  arid  your  country's  honor 
will  rise  your  fame.  Like  the  Pyramids  of 
Egypt,  it*  base  will  be  broad;  its  altitude  tow- 


108 


TO  THE  GOVERNOR  EEECT  OF  KENTUCKY. 


ering.  In  a  moral  desert,  without  one  green 
spot  in  the  cheerless  waste  around,  without  one 
ray  of  intellectual  light  to  irradiate  the  sur 
rounding  gloom  of  midnight  darkness,  will 
stand  the  monument  of  your  administration. 
It  will  stand  isolated  and  lonely.  Your 
"WHIGS"  may  kneel  around  it  and  pour  out 
their  benisons,  by  anticipation;  for  such  will 
be  the  mausoleum  of  your  "COURT  PARTY." 

Your  administration  forms  a  new  era  in  the 
affairs  of  men.  It  is  replete  with  incidents — 
but  what  are  they?  Where  will  posterity  find 
the  memorials  of  the  wisdom,  or  benevolence, 
or  patriotism  of  the  Governor  and  his  "court 
party?"  What  good  law,  what  public  work, 
what  vestige  of  wise  policy  will  illustrate  their 
memorable  reign?  Alas!  nothing  will  be  visi 
ble  but  the  scars  which  you  have  inflicted  on 
the  constitution. 

What  a  contrast  will  your  administration 
present  to  the  proud  days  of  our  Scotts  and 


Oh,     Kentucky!    HOW  HAST    THOU 


ant; 
hen  I 


Shelbys? 
FALLEN! 

I  shall  not  speak  treason.  Truth  is  poign 
but  cut  whom  it  may,  it  must  come.  Wh< 
see  the  prostrate  condition  of  my  state;  when  I 
see  her  despoiled  of  her  fame  and  robbed  of 
her  peace,  Vy  you  and  your  party,  I  cannot 
repress  the  tide  of  my  indignation.  No  state 
was  ever  in  a  more  deplorable  or  perilous  pre 
dicament;  none  ever  so  much  abused  by  her 
rulers.  I  should  consider  longer  silence  crimi 
nal.  -No  good  citizen  can  now  be  neutral. 
Each  should  act  as  if  his  country's  fate  were 
suspended  on  the  issue  of  his  single  efforts. 

We  hare  suffered  much  and  long.  We  can 
endure  no  more.  We  have  given  your  expeii- 
ments  a  fair  and  patient  trial.  They  are  em- 
pyrical.  They  will  ruin  us.  Tney  have 


called  "Keiituckian;"  but  now  this  title  is,  by 
many,  when  they  are  abroad,  concealed,  as  a 
reproach.  <eHow  has  the  mighty  fallen!" 

Kentuckians  are  yet  brave;  they  are  yet  in 
tellectual;  they  are  yet  disposed  to  be  just;  and 
it  rejoices  me  to  believe  that,  ere  long,  they 
will  prove  it.  The  character  of  a  people  is 
identified  with  that  of  their  rulers.  The  rulers 
of  our  state,  for  a  series  of  years,  have  not  been 
men  "fearing  God  and  hating  covetousness." 
They  have  governed  by  expedients,  and  not  by 
principles.  They  have  addressed  the  pas 
sions,  and  not  the  reason  of  the  people. 

From  the  reign  of  a  party  thus  created,  and 
of  which  you  are  now  the  titular  head,  our 
misfortunes  have  sprung.  This  is  demonstra 
ble;  and  it  will  not  be  long  when  no  one  will 
doubt  or  deny  it.  You  have  invented  a  new 
kind  of  sovereignty — the  sovereignty  of  the  pas 
sions.  You  have  discovered  a  new  kind  of 
liberty — the  liberty  of  nature,  not  of  society;  of 
the  savage,  not  of  the  civilized  man.  The  lib 
erty  which  our  fathers  fought  for,  was  the  lib 
erty  of  doing  right,  not  of  doing  wrong;  of  do 
ing  what  we  ought  to  do,  not  what  we  will  to 
do;  the  liberty  of  security,  not  of  anarchy. 
They  gave  us  their  precepts;  they  gave  us  a 
constitution,  to  guide  us  in  difficulty  and  dis 
tress.  But  you  are  wiser  than  they.  You 
have  discovered  that  men  need  no  government 
— no  restraints  of  constitution  or  law.  You 
have  yielded  to  passion  that  supremacy  which 
oelongs  alone  to  reason.  You  have  given 
dominion  to  those  tempers  and  impulses  of  our 
nature  which  government  is  instituted  alone  to 
control.  You  have  discarded  as  tyrannical, 
:hose  principles  which  the  experience  of  ages 
iias  proven  to  be  the  only  sure  safeguards  of 
social  order  and  individual  security.  You 


brought  us  to  a  crisis  which  is  pregnant  have  been  endeavoring  to  prove  that  men  are 
with  the  destiny  of  our  state  and  the  prospects  n°t  bound  by  any  political  compact,  and  can 
of  our  posterity.  There  must  be  no  evasion.  De  governed  best  without  any  constitution. 


There  can  be  no  COMPROMISE.  Moral  or 
physical  force,  industry  or  idleness,  justice  or 
licentiousness,  the  constitution  or  your  will 
must  triumph;  and  with  the  success  of  the  one 
or  the  other,  your  party  or  mine  must  sink  to 
risenoraore.  A  PLEBIAN. 


TO  THE  GOVERNHR  ELECT  OF  KEN 
TUCKY— No.  in. 

"Our  WISDOM  formed  a  government  and 
committed  it  to  our  VIRTUE  to  keep;  but  our 
PASSIONS  have  engrossed  it  and  armed  our 
VICES  to  maintain  the  USURPATION." 

Kentucky,  conscious  of  her  worth,  once  stood 
erect  and  pre-eminent  in  the  Union;  she  is  now 
bowed  down.  She  was  proud,  because  she 
was  great,  She  was  honored,  because  she  was 
brave,  wise,  and  just.  Her  government  was 
then  the  reflected  image  of  her  people.  Her 
rulers  were  wise,  and  just,  and  patriotic  men; 
they  governed  according  to  her  constitution, 
and  the  people  were  free  and  highly  distin 
guished.  1 1  was  the  most  signal  honor  to  be 


Hence,  you  have  given  development  and  effect 
to  the  worst  passions,  and  have  not  suffered 
the  moral  energies  of  the  state  to  display  them 
selves,  and,  consequently,  the  people  have  suf 
fered  all  the  horrors  of  discord  and  violence, 
and  their  character  has  been  sunk  below  its 
just  rank. 

To  explore  all  the  uieanderings,  and  expose 
all  the  errors  of  your  party,  since  they  have 
had  sway,  would  be  an  Herculean  task,  which 
I  have  neither  time  nor  inclination  to  attempt. 
I  shall  not  attempt  to  cleanse  your  "AUGEAN 
stable;"  but  the  people  will  do  it.  Although 
the  principles  of  your  faction  have  been  pesti' 
lent  and  demoralizing,  yet  I  am  sure  the  people 
have  intelligence  and  virtue  sufficient  for  the 
renovation  of  both  the  moral  and  political  con 
stitutions  of  Kentucky.  If  I  am  in  this  mis 
taken,  then  I  despair  of  the  commonwealth. 
To  contribute  to  the  rectification  of  your  er 
rors,  and  to  the  restoration  of  the  body  politic 
to  its  natural  and  healthful  tone,  is  my  only 
object;  and  if  I  shall  in  any  degree  succeed,  I 
shall  have  fulfilled  my  expectations. 

1  know  that  it  is  difficult  to  reason  with 
prejudice  or  combat  interest,  and  that  inveter 
ate  error  is  almost  invincible. 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


109 


The  long  success  of  your  party  is  a  political 
phenomenon  never  before  witnessed  in  any 
civilized  age  of  the  world.  In  defiance  of  all 
the  lessons  of  experience;  in  opposition  to  all 
the  maxims  of  political  philosophy;  in  con 
tempt  of  the  suggestions  of  justice  and  the 
forecast  of  wisdom;  you  have  gone  on,  step  by 
step,  in  your  career  of  experiment,  until,  em 
boldened  by  astonishing  success,  you  light  the 
torch  of  civil  war,  and  open  your  batteries 
against  the  constitution  of  your  country.  In 
the  initiative  efforts  of  "relief,"  you  were  more 
timid  and  temporizing;  you  then  awakened 
the  hopes  of  the  debtor,  and  cajoled  the  cred 
itor;  you  masked  jour  designs,  and  promised 
that  your  expedients  should  cease  with  the 
emergency,  to  which  you  appealed  for  their 
justification.  None  hoped,  no  one  feared  that 
your  system  could  be  pushed  to  the  extremi 
ty  to  which  it  has  been  forced.  Even  those 
who  were  most  opposed  to  its  inception,  and 
predicted  that  it  would  be  delusive  and  mis 
chievous,  did  not  foresee  that,  in  its  baneful 
progress,  it  would  blight  whatever  is  most  sa 
cred  among  freemen,  and  at  last,  after  making 
you  a  Governor,  dare  to  crown  its  triumphs  on 
the  ruins  of  the  constitution. 

When  the  infatuation  which  has  accompanied 
and  sustained  your  system,  shall  subside  into 
the  sobriety  of  calm  reflection,  and  reason 
shall  once  more  govern  the  opinions  and  actions 
of  men,  the  long  duration  of  the  paper  mania, 
and  the  wonderful  success  of  the  paper  faction 
in  Kentncky,  will  be  looked  upon  with  univer 
sal  astonishment  and  regret. 

Your  party  has  been  buoyed  up  by  extraor 
dinary  exertions,  and  unworthy  and  insidious 
artifice.  The  unholy  ambition  of  its  leaders 
has  been  equalled  only  by  the  servile  devotion 
and  inexplicable  delusion  of  their  followers. 
The  design  of  the  leaders  was  POWER;  and 
they  have  cloaked  their  selfish  ends  under  the 
disguises  of  charity  and  patriotism.  They 
have  played  on  the  worst  passions  of  our  na 
ture,  and  have  not  failed  to  invoke  to  co-opera 
tion  or  forbearance  the  best  sensibilities  of 
good  men.  To  the  honest  debtor  they  prom 
ised  indulgence,  and  better  times;  to  the  fraud 
ulent  and  improvident,  they  tendered  the 
means  of  avoiding  payment;  to  the  extrava 
gant,  they  offered  facilities  of  enjoyment;  to 
the  lazy,  they  secured  rest;  to  the  cunning, 
they  surrendered  the  ignorant  as  victims;  they 
encouraged  treachery  by  impunity,  and  fraud 
by  legalizing  its  spoliations  on  innocence  and 
industry;  and  thus  they  rallied  around  their 
standard  the  unproductive  members  of  society, 
and  gave  up  justice  to  passion. 

By  other  means,  they  enlisted  the  active 
support  of  many  good  men,  and  secured  the 
acquiescence  of  some  who  were  wise  and  just. 
To  such  as  these  they  exhibited  false  colors, 
and  by  artful  stratagems,  concealed  their  ob 
jects  and  the  tendencies  of  their  policy.  To 
the  benevolent,  they  exhibited  moving  scenes 
of  misfortune;  to  the  generous,  pecuniary  dis 
tress;  to  the  merciful,  the  blessings  of  charity; 
to  the  chivalrous,  fictitious  oppression;  to  all, 
delusive  hopes  find  expectation*;  and  thus,  by 


an  unnatural  union  of  the  worst  and  some  of 
the  best  elements  of  society,  they  have  been 
able  to  go  on  and  triumph,  until  they  view  as 
traitors  those  who  oppose  them. 

Political  quacks,  like  medical  quacks,  are 
apt,  for  a  season,  to  succeed  in  passing  off  igno 
rance  for  wisdom,  and  vociferation  for  learn 
ing.  With  the  greatest  confidence  and  self- 
complacency,  they  amuse  the  fancy  and  sport 
with  the  credulity  of  an  honest  community. 
And  never  did  quackery  of  any  kind  make 
such  wonderful  achievements  as  yours  and 
that  of  your  political  doctors,  during  the 
last  five  years,  in  learning  men  to  live  without 
industry,  to  thrive  without  economy,  to  be 
happy  without  virtue,  to  discharge  debts  with 
out  paying  them,  to  make  fortunes  without  la 
bor,  to  commit  crimes  without  fear,  and  live 
free  without  law.  You  have  a  nostrum  for 
every  disease.  "Relief"  has  been  your  PA 
NACEA.  This  your  empirics  averred  to  be  a 
sovereign  remedy  for  every  complaint.  It 
opens  the  eyes  of  the  blind,  unstops  the  ears  of 
the  deaf,  transforms  old  federalists  into  new 
democrats,  and  old  tories  into  modern  whigs. 
It  can  make  fools  wise  men,  knaves  honest,  rich 
men  poor,  and  poor  men  rich.  It  can  make 
great  judges  without  knowledge  of  law,  and 
great  politicians  without  any  knowledge  at  all. 
With  this  magical  specific,  this  concoction  of 
delay  laws  and  depreciated  paper  money,  yon 
have  literally  drenched  the  people  to  satiety, 
until  those  who  have  not  the  stomachs  of  dogs, 
and  the  constitutions  of  mules,  are  beginning  to 
nauseate. 

Sir,  you  will  kill  more  than  you  will  cure. 
The  doctor  may  thrive,  but  the  patient  must 
die.  She  exhibits  even  now  every  indication  of 
decline  and  speedy  dissolution.  You  have 
dosed  her  until  she  is  lean  and  exhausted;  her 
system  has  lost  its  healthy  tone,  and  its  whole 
action  is  morbid.  MERCY  alone  can  save  her; 
ABSTINENCE  and  the  "CONSTITUTION 
AL"  Tonic  will  alone  restore  her  to  health  and 
vigor. 

Your  prescriptions  have  brought  Kentuckv 
to  the  brink  of  the  grave.  The  health  which 
once  flushed  her  cheek  is  gone.  The  moral 
tone  which  once  gave  her  such  expression  and 
animation,  is  almost  exhausted.  The  very 
blood  of  life  is  ceasing  to  circulate.  You  must 
desist.  Her  constitution,  although  much 
shaken,  is  not  destroyed.  It  is  recuperative. 
Let  it  alone,  and  the  "vis  medicatrix  naturae" 
will  restore  it,  until  Kentucky  is  herself  again. 
Let  her  alone,  and  she  will  revive,  and  her 
prospects  will  revive. 

The  course  of  your  party  has  been  selfish, 
unjust,  and  disingenious.  By  the  party  1 
mean  only  the  head  men.  You  made  replevin 
laws  which  you  intended  only  for  the  benefit 
of  yourselves .  You  knew  they  would  not  ben 
efit  the  poor  and  honest  debtor.  You  knew 
that  none  would  enjoy  their  advantages  but  the 
crafty  and  dishonest,  and  rich  bankrupts.  1 
say  rich  bankrupts,  for  such  "gentlemen"  we 
all  know  we  have  among  us. 

You  made  paper  money,  which  you  knew 
sink  in  value,  and  answer  no  just  or 


110 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


honest  purpose.  It  was  your  interest  to  de 
preciate  it,  and  you  did  it.  To  enable  a  few 
of  yourselves  to  live  on  fortunes  purchased  on 
credit,  or  on  money  borrowed  from  banks  or 
individuals,  and  thus  ruin  many  families  dis 
posed  only  to  live'  honestly,  you  abolished 
the  ca.  sa.  The  effects  have  been  what  were 
intended.  There  are  many  (they  are  all  "whigs") 
who,  by  their  credit,  had  accumulated  vast  es 
tates,  and  exempt  from  all  coercion,  have  re 
fused  to  pay  one  cent  to  those  to  whom  their 
property  justly  belongs;  but  enriched  by  their 
poverty,  treat  them  with  scorn  and  derision. — 
Even  the  wanton  and  malevolent  arc  licensed 
to  commit  their  depredations  on  property,  and 
persons  and  character  with  impunity.  A  scoun 
drel  may  burn  your  house,  shoot  your  horses 
or  slander  your'daughters,  and  relief  laws  al 
low  you  no  reparation,  unless  he  chooses  to 
give  it.  This  is  "liberty"  with  a  vengeance. 

The  entire  loss  of  depreciation  in  your  pa 
per,  has  fallen  on  honest  industry — and  thereby 
shavers  and  money  jobbers  have  made  for 
tunes.  The  poor  have  become  poorer — the 
rich  richer.  And  whilst  industry  has  been  re 
laxed  by  insecurity  and  unproductiveness  of 
its  rewards,  keen-eyed  speculation  has  preyed 
on  the  necessities  of  the  unfortunate,  and  de 
spoiled  the  ignorant  and  unwary.  The  com 
mon  country  people  have  been  compelled  to 
pay  their  debts:  and  relief  laws,  instead  of  fa 
cilitating-  payments,  have  only  rendered  them 
more  difficult  and  oppressive.  But  the  "rich 
bankrupt"  has  lived  in  splendor  and  security 
on  the  spoliations  which  your  laws  encourage 
by  legalizing.  You  have  made  it  the  interest 
of  men  to  violate  their  most  solemn  contracts, 
and  live  by  fraud.  Man  has  lost  confidence 
in  his  fellow  man;  internal  commerce  is  stag 
nant;  foreign  trade  unequal  and  unproductive, 
agriculture  despondent,  virtue  proscribed,  pa 
triotism  in  despair.  To  doubt  the  skill  of  re 
lief  doctors  is  heresy;  to  question  their  recti 
tude,  aristocratic;  to  resist  their  prescriptions, 
usurpation;  none  are  republican  who  do  not 
think  as  they  think,  and  act  as  they  act;  none 
free  who  are  controlled  by  the  obligations  of 
law  or  conscience;  to  compel  men  to  do  right  is 
tyranny — to  allow  them  to  do  whatever  inter 
est  or  passion  prompts  is  ''Liberty!" 

Here  you  sec  some  of  the  fruits  of  your 
ble.ssod  system — licentiousness  and  anarchy 
reigning,  reason  dethroned,  conscience  stilled, 
industry  and  economy  laughed  out  of  coun 
tenance,  old-fashioned  republican  virtue  and 
simplicity  spurned,  the  constitution  mocked, 
and  your  will  substituted  in  its  place.  "Passion 
has  indeed  engrossed  the  government,  and 
armed  our  vices  to  maintain  the  usurpation." 

If  it  had  been  agreed  about  five  years  past 
to  pay  the  debts  of  a  few  men  whom  you  know, 
ami  allow  another  large  connection  whom  you 
also  know,  and  to  whom  I  shall  hereafter  al 
lude  again,  to  keep  about  $100,000  which  they 
owed,  we  never  should,  have  been  afflicted 
with  your  relief  laws.  I  thought  then,  and 
now  I  know,  that  by  paying  or  wiping  off  the 
debts  of  these  men,  and  consenting  that  a  few 
more  ghould  have  offices,  we  should  have  made 


a  good  bargain.  If  we  had  done  this,  you 
would  have  left  others  (as  indeed  after  all 
your  noise,  you  have  done)  to  shift  for  them 
selves  and  work  out  their  own  salvation. 
Then  we  should  have  gone  on  as  other  states 
have  done.  Like  them,  we  should  now  be 
prosperous,  rich,  and  happy;  our  character  un 
sullied,  our  currency  abundant  and  good,  our 
liberties  secure  and  our  constitution  unmaimed. 

If  your  relief  system  had  been  intended  as 
you  pretended  that  it  was,  for  those  who  most 
needed  and  best  deserved  its  aid — the  unfor 
tunate  arid  honest — then  its  enormities  would 
have  found  some  palliation  in  the  plea  of  hu 
manity.  But  it  was  intended  for  rich  "bank 
rupts"  and  broken  down  politicians,  and  they 
have  indeed  been  relieved. 

You  have  been  relieved,  sir.  The  paper  sys 
tem  has  made  you  a  Governor,  who  have  not 
one  quality,  moral  or  intellectual,  to  entitle  you 
to  so  distinguised  a  trust.  It  has  made  many 
other  men  great,  who,  without  its  influence, 
would  have  enjoyed  the  blessedness  of  obscu 
rity  forever. 

It  has  made  many  honest  men  poor,  and 
many  mean  men  rich.  It  has  robbed  labor  of 
its  earnings,  and  given  splendor  and  wealth  to 
profligacy.  These  things  we  all  know,  and 
therefore 'details  will  be  omitted. 

What  other  relief  has  your  system  adminis 
tered?  None,  I  say;  and  the  people  will  all 
say  so  too,  before  they  are  relieved  of  your  "re 
lief."  The  aggregate  debt  of  the  state  is  not 
diminished.  It  is  only  transferred.  There 
may  not  be  as  manv  large  debts,  but  there  are 
more  small  ones.  T>he  "big  men"  have  stepped 
out,  and  the  common  men  must  now  shift  for 
themselves. 

How  arc  the  debts  due  your  bank  to  be  paid? 
How  are  your  debtors  to  be  relieved?  You 
liave  seduced  most  of  them  to  incur  the  debts 
which  they  now  owe!  Will  you  enable  them 
to  pay  them?  No,  it  is  too  late.  Those  for 
whom  relief  laws  were  passed,  are  relieved; 
and  all  others  must  get  relief  as  they  can. 

The  crisis  of  difficulty  and  distress  is  now 
just  approaching.  You  have  administered 
anodynes;  but  the  disease  is  not  eradicated;  it 
is  aggravated.  Relief  is  more  necessary  now 
than  ever  it  was.  The  paper  system  is  wind 
ing  up.  It  must  cease;  and  convulsion  must, 
follow.  Then,  and  not  till  then,  you  and  your 
party  will  be  justly  appreciated.  Then  all 
willVgree  that  the  relief  system  was  aristocrat 
ic,  unjust  and  ruinous.  Then  will  they  ascer 
tain  that  honesty  is  the  best  policy — that  the 
only  remedy  for  hard  times  is  Dr.  Franklin's 
remedy — industry  and  economy;  to  buy  less 
and  sell  more;  to  avoid  credit,  and  reduce  the 
xpenditxire  within  the  income.  The  people 
who  live  in  conformity  to  these  plain  maxiju* 
will  never  want  relief.  They  will  prosper, 
Thosewho  disregard  them,  and  repose  on  poli 
ticians  for  relief,  will  never  prosper;  and  all 
the  relief  laws  that  all  the  relief  men  in  tho 
world  could  enact  will  not  avail.  You  may 
as  well  expect  to  make  men  happy  without 
virtue,  as  rich  without  industry  and  frugality. 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


in 


You  cannot  reverse  the  decrees  of  Heaven. 
Deity  had  united  happiness  with  virtue,  and 
wealth  with  labor.  A  community  is  an  aggre 
gation  of  individuals,  and  whatever  contrib 
utes  to  the  welfare  of  the  individuals,  advances 
that  of  the  state.  We  will  learn  wisdom  by 
experience,  and  profit  by  affliction.  In  the 
circumvolution  of  human  affairs,  your  party 
will  give  place  to  wiser  and  better  statesmen; 


in  itself,  it  depends  for  support  upon  accident, 
caprice,  and  party;  and  as  it  is  the  interest  of 
some  to  depreciate,  and  of  others  to  raise  its 
value,  there  is  a  continual  invention  going  on, 
that  destroys  the  morals  of  the  country.  It 
was  horrid  to  see,  and  hurtful  to  recollect,  how 
loose  the  principles  of  justice  were  let  by 
means  of  the  paper  emission?  during  the  war. 
The  experience  then  had,  should  be  a  warn 


ing  to  any  assembly  how  they  venture  to  open 
such  a  dangerous  door  again."    "There  are  a 


and  then,  our  state  will  begin  to  look  up,  and 

the  people  to  smile  with  peace  and  plenty.  

A  PLEBIAN.       set  of  men  who  go  about  making  purchases 
1  upon  credit,  and  buying  estates  they  have  not 

—  •  <*•»•  ' —  !  wherewithal  to  pay  for;  and  having  done  this, 

j  their  next  step  is  to  fill  the  newspapers  with 

TO    THE  GOVERNOR   ELECT    OF  KEN-  paragraphs  of  the  scarcity  of  money  and  the 

TTJCKY — No.  iv.  I  necessity  of  a  paper  emission;  then  to  have  it 

"  j  made  a  legal  tender,  in  pretence  of  supporting 

"The  laws  of  a  country  ought  to  be  the  its  credit;  and  when  out,  to  depreciate  it  as  fast 
standard  of  equity,  and  calculated  to  impress  j  as  they  can,  get  a  deal  of  it  for  a  little  price, 
on  the  minds  of  the  people  the  moral  as  well !  and  cheat  their  creditors;  and  this  is  the  con- 
as  the  legal  obligations  of  reciprocal  justice,  cise  history  of  paper  money  schemes."  "As  to 
But  tender  laws  of  any  kind  operate  to  destroy  the  assumed  authority  of  any  assembly,  in 
morality,  and  to  dissolve,  by  the  pretence  of  j  making  paper  money  a  legal  tender,  or  in  other 
law,  what  ought  to  bo  the  principle  of  law  to  language,  a  COMPULSIVE  PAYMENT,  it  is  a  most 
support — reciprocal  justice  between  man  and 


man;  and  the  punishment  of  a  member  who 
would  move  for  such  a  law  ought  to  be  death." 

TOM  PAINE. 

All  attempts  to  make  money  out  of  paper 
have  been  abortive  and  mischievous.  The 
German  expressed  a  volume  of  experience, 
when  he  said,  "money  is  money,  and  paper  is  pa 
per."  Paper  may  be  sometimes  a  convenient 
and  useful  representative  of  money,  but  it  can 
never  be  more  than  the  effigy;  and  when  it  does 
not  represent  a  metallic  fund  into  which  it  may 
be  instantly  and  certainly  converted,  it  is  a 
fraud  on  industry  and  a  nuisance  to  society. 
The  paper  of  Kentucky  has  not  even  the  sem 
blance  of  money.  Itrepresents  nothing  except 
the  supposed  credit  of  the  state.  This  is  too 
indeterminate  and  intangible  to  give  it  the 
quality  of  the  value  of  money.  If  the  people 
of  the  United  States  had  not  been  severely  af 
flicted  with  a  paper  mania,  during  and  suc 
ceeding  "the  revolution,"  there  might  be  some 
excuse  for  the  paper  system  of  Kentucky.  Pa 
per  money  had  been  proscribed,  by  the  political 
economist,  the  citizen  and  the  philanthropist. 
It  will  ever  be  deleterious. 

Had  you  and  your  party  forgotten  the  senti 
ments  of  American  statesmen  and  patriots  on 
this  subject?  Had  you  forgotten  the  history  of 
paper  money?  Allow  me  to  offer  you  some 
short  extracts  from  an  essay  on  this^  spurious 
currency,  by  one  who,  although  he  was  an  infi 
del  in  religion,  was  one  of  the  revolutionary 
oracles  in  politics;  whose  pen  was  supposed  to 
have  done  more  for  American  liberty  than  the 
-sword  of  any  warrior,  and  who  was  supposed 
io  have  written  what  Franklin  assisted  in  die- 1 
tating.  This  man  is  no  other  than  "Tom  it.1 


Paine."     I  give  yon  the  following1!  "One  of  the 


presumptuous  attempt  at  arbitrary  power. 
There  can  be  no  such  power  in  a  republican 
government;  the  people  have  no  freedom,  and 
property  no  security,  where  this  practice  can 
be  acted;  and  the  committee  who  shall  bring 
in  a  report  for  this  purpose,  or  the  member 
who  moves  for  it,  merits  impeachment,  and 
may,  sooner  or  later,  expect!"  "It  was  the  is 
suing  of  base  coin  and  establishing  it  as  a  ten 
der,  that  was  one  of  the  principal  means^of 
fiaally  overthrowing  the  power  of  the  Stuart 
family  in  Ireland." 

Such  was  paper  money  in  former  times — 
such  will  it  be  in  all  times.  The  same  causes 
must  produce  the  same  effects.  The  wise  men 
who  adopted  the  federal  constitution,  intend 
ed  to  put  it  out  of  the  power  of  visionary  or 
bad  men,  ever  to  visit  the  people  with  the  de 
vastations  of  a  depreciated  paper  currency. 
They  had  seen  and  felt  what  we  have  seen  and 
now  feel.  And  you  have  their  sentiments,  IN 
PART,  in  the  foregoing  extracts.  Then  it  was 
patriotic  to  hate  paper  money  and  its  project 
ors — :now  it  is  treason  not  to  defend  the  one 
and  idolize  the  other. 

Your  relief  system  has  achieved  just  what 
might  have  been  expected,  and  what  it  was  in 
tended  to  effect.  It  has  revolutionized  the 
state;  it  has  ruined  creditors;  it  has  injured 
the  honest  debtors;  it  has  enriched  the  fraudu 
lent,  and  made  small  men  great;  it  has  made 
you  a  Governor,  and  John  Rowan  a  Senator. 
Great  and  magical  must  be  the  engine  which 
can  achieve  such  wonderful  results. 

In  your  bold  career,  the  constitution  was  no 
obstacle.  "That  is  only  paper"  the  breath  of 
the  people  made;  "the  legislature  can  destroy 
But  you  met  with  a  stumbling  block  in 


evils  of  the  paper  currency  is,  that  it  turns 
whole  country  into  stock-jobbers.  The  prec 
ousness  of  its  value  and  certainty  of  its  fate, 


the 
precari- 


continue  to  operate,  night  and  day,  to  produce 
this  destructive  effect."  Having  no  real  value 


the  judiciary.  The  judges  of  the  court  of  ap 
peal**  had  some  conscience,  and  they  refused 
to  co-operate  with  you  in  your  work  of  injus 
tice,  and  confusion,'  and  constitution  breaking. 
They  then  became  tyrants  and  kings,  and 
must  bo  put  out  of  yonr  way,  or  the  people 


112 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


would  be  enslaved!  To  consummate  your 
schemes  of  LEGISLATIVE  SUPREMACY, 
you  violated  the  constitution  and  convulsed 
the  country.  You  have  said  that  the  "omnip 
otence  of  parliament"  is  freedom.  Mr.  Jeffer-* 
son  has  said  that  it  is  despotism,  and  the  De 
claration  of  Independence  proclaims  it  TYRAN 
NY. 

You  say,  that  servile,  dependent  judges,  are 
essential  to  the  liberty  of  the  people.  The 
whigs  of  England  and  the  whigs  of  America 
have  said,  that  no  people  can  be  free  without  a 


men  enter  into  such  a  covenant?  It  is  because 
without  it  the  weak  may  be  oppressed  by  the 
strong — the  few  overrun  by  the  many.  If  the 
many  have  the  right,  notwithstanding  this 
compact,  to  do  as  they  please,  what  is  effected 
by  the  compact?  Nothing,  except  delu 
sion.  It  exhibits  the  shadow  of  freedom, 
whilst  the  substance  is  gone,  and  although 
there  is  a  constitution,  the  government  is  the 
worst  of  all  despotisms;  so  say  all  wise  and 
good  men. 

The  will  of  the  sovereign,  you  say,  is  liberty. 


pure  and  independent  judiciary.  j  I  say  it  is  tyranny.    You  say  that  the  will  of 

You  say  that  honest  judges  are  dangerous,  j  the  legislature  is  the  supreme  law.    I  say  that 

the  constitution  is   the  supreme  law.     Thi.s 


Mr.  Madison,  and  the  wisest  American  states 
men  tell  you,  the  legislative  department  is  that 
from  which  the  people  may  apprehend  danger, 
and  against  which  they  should  exhaust  all 
their  vigilance  and  all  tlieir  precaution. 

The  sovereign  power  is  lodged  in  Kentucky, 
where  it  ought  to  be,  in  the  body  of  the  peo- 


constitution  prescribes  the  landmarks  of  liber 
ty,  and  whenever  these  are  transcended  by  the 
legislature,  or  a  majority  of  the  people,  the 
weak  and  the  poor  have  no  refuge  from  injus 
tice  but  in  insurrection. 

Your  relief  system  has  been  marked  with 


pie.  They  are  all  equal  in  rights,  and  may  be  j  many  outrages  on  the  principles  of  republican 
so  in  power.  The  great  paramount  law  of  a  j  government.  The  doctrines  which  tsustain  it 
republic  is  the  public  good.  The  law  of  a  des-  j  are  subversive  of  every  principle  of  constitu- 
pot  is  his  WILL.  And  that  government  is  ai  tional  security;  they  are  the  doctrines  of  des- 
despotism  in  which  the  will  of  the  sovereign  j  potism.  and  a  despotism  the  more  to  be  detest- 
is  the  supreme  law,  whether  that  sovereign  be  j  ed,  because  it  is  disguised  in  the  garb  of  re- 
a  king  or  a  parliament.  Will  you  pardon  me  j  publicanism.  "Hypocrisy  is  the  homage 
for  obtruding  upon  your  attention  another  ex-  j  which  vice  pays  to  virtue."  Your  whole  sys- 
tract  from  Tom  Paine?  It  is  as  follows:  j  tern  has  been  full  of  duplicity;  it  has  been  re- 

"The  administration  of  a  republic  is  sup-  j  plete  with  aristocracy;  it  has  turned  Kentucky 
posed  to  be  directed  by  certain   fundamental  I  politics  "wrong-side  out.    John    Rowan    and 


principles  of  right  and  justice,  from  which 
there  cannot  be  any  deviation."  "The  foun 
dation  principle  of  'public  good'  is  justice, 
and  wherever  justice  is  impartially  adminis- 


Joseph  Desha  are  now  the  leaders  of  the 
"tohiffs!"  and  Isaac  Shelby  and  Richard  Tay 
lor  head  the  column  of*  "tories!"  By  such 
profanation  of  the  sacred  principles  of  '76, 


tered,  the  public  good  is  promoted,  for  it  is  to  your  system  is  kept  in  being.    It  changes  the 
the  good  of  every  man,  that  no  injustice  is  done   names    and    very   essence  of  things      It  has 


to  him,  so  likewise  it  is  to  his  good,  that  the 
principle  which  secures  him  should  not  be  vio 
lated  in  the  person  of  another,  because  such  a 
violation  weakens  his  security,  and  leaves  to 
chance  what  ought  to  be  to  him  a  rock  to  stand 
on" — "the  people  renounce  not  only  the  des 
potic  form,  but  the  despotic  principle,  of  be 
ing  governed  by  will  and  power;  and.  substitute 
a  government  of  justice" — "they  renounce,  as 
detestable,  the  power  of  exercising  any  species 
of  despotism  over  each  other,  or  of  doing  a 
thing  not  right  in  itself,  because  a  majority 
may  have  strength  sufficient  to  accomplish 
it;"  "in  this  lies  the  foundation  of  the  repub 
lic;  and  the  security  of  the  rich  and  consola 
tion  of  the  poor,  is  that  what  each  man  has  is 
his  own;  that  no  despotic  sovereign  can  take  it 
from  him,  and  that  the  common  cementing 
principle  which  holds  all  the  party  of  a  repub 
lic  together,  secures  him  likewise  from  the 
despotism  of  numbers;  for  despotism  may  be 
more  effectually  acted  by  many  over  a  few, 
than  by  one  over  all." 

This  is  the  language,  not  of  Paine  only,  but 
of  the  patriots  of  the  "times  that  tried  men's 
souls."  Sir,  to  be  free,  men  must  govern,  and 
be  governed,  by  principles  settled  by  the  mu 
tual  consent  of  the  people.  They  must  bo 
governed  by  a  CONSTITUTION.  The  writ 
ten  constitution  is  the  compact  between  them, 
to  which  each  looks  for  security.  Why  do 


made  old  federalists  excellent  republicans,  and 
the  old  republicans  federalists.  It  has  united 
the  most  discordant  elements,  and  brought  to 
gether  the  most  opposite  extreme  of  former  po 
litical  opinions.  Men  who  have  ever  been 
virulent  enemies,  and  now  agree  on  no  other 
subject,  act  in  cordial  concert,  with  a  vigor 
that  could  not  be  exceeded  if  their  eternal  sal 
vation  were  at  stake. 

Who  could  have  believed,  five  years  ago, 
that  John  Rowan,  George  M.  Bibb,  William  T. 
Barry,  Sam.  Davis  and  Joseph  Desha  would 
ever  be  cordial  personal  friends,  and  belong  to 
the  same  political  school?  Yet  such  we  know 
to  be  historic  fact;  and  we  know,  too,  that  they 
call  themselves  republicans!  yes,  all  of  them, 
good  republicans! 

This  is  most  impudent  and  sacrilegious. 
But  still,  relief  men  profess  to  believe  it  all, 
and  look  to  these  oracles  for  precepts  of  de 
mocracy!  From  such  democracy  may  the  God 
of  Abraham,  and  of  Isaac,  and  of  Jacob,  deliver 
outraged  and  deluded  Kentucky.  John  Row 
an  and  Samuel  Davis,  of  "alien  and  sedition 
law"  memory,  and  their  company  of  political 
managers,  greeted  as  the  apostles  of  republican 
ism!  as  whigs!!  And  the  patriarchs  of  the  po 
litical  church — its  Shelbys,  its  Taylors,  its 
Bowmans,  heroes  of  all  our  wars,  founders  of 
our  liberty — the  whigs  of  '76,  the  republicans 
of  '98 — these  venerable  patriots  are  denounced 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY, 


113 


as  lories,  aristocrats,  federalists!  Such  are 
some  of  the  achievements  of  relief,  uud  such  the 
infatuation  which  attends  its  career.  "Well 
might  Jefferson  have  predicted  that  federalism 
would  supplant  democracy,  by  stealing  its 
garb.  Where  are  the  principles  of  '76?  Are 
they  entombed  with  the  sages  who  consecrated 
them  by  their  wisdom,  and  the  heroes  who 
sealed  them  with  their  blood?  Have  we,  their 
sons,  so  far  degenerated  in  virtue  as  to  despise 
those  principles,  or  in  intelligence,  as  not  to 
understand  them?  If  so,  liberty  is  a  phan 
tom — free  government  an  Utopia.  Recent 
events  in  our  state  are  alarming.  Either  the 
Declaration  of  Independence  is  not  true,  or 
these  things  must  be  the  products  of  chance  or 
mystery,  and  will  not  last. 

You  have  amused  the  people  with  your  new 
expedients;  you  have  tempted  their  cupidity; 
you  have  played  on  their  hopes;  you  have  de 
claimed  in  indefinite  terms  about  liberty, 
equality,  supremacy  of  the  people,  the  tyranny 
of  judges,  <fcc.,  while  your  principles  are  the 
opposite  of  your  profession,  as  your  acts  and 
their  fruits  will  prove.  These  have  been  the 
means  by  which  all  unworthy  men  have  ac 
quired  power.  Pisistrates  preached  liberty 
and  equality — was  the  friend  of  the  poor — de 
nounced  Solon,  and  other  patriots  and  sages 
who  were  in  his  way,  as  enemies  of  the  peo 
ple — their  vanity  was  flattered,  and  their  cre 
dulity  yielded — and  their  country  was  subju 
gated  to  despotism.  So  acted  Julius  Caesar 
and  Oliver  Cromwell,  and  Robcspiere  and  his 
Jacobin  club,  and  so  have  done  the  Governor 
and  his  "CABAL." 

Your  conduct  is  not  without  example.  History 
furnishes  many  such  cases  as  yours.  All  ambi 
tious  men,  whoso  merit  will  not  sustain  their 
pretensions,  have  reached  the  confidence  of  the 
people  by  the  same  avenues,  and  rewarded  it 
with  the  like  treachery.  Read  the  following 
extract  from  an  able  work  on  the  causes  of  the 
downfall  of  the  ancient  republics: 

"As  the  lust  of  domination  can  never  attaii 
its  end  without  the  assistance  of  others,  the 
man  who  is  actuated  by  that  destructive  pas 
sion,  must  of  necessity  strive  to  attach  to  him 
self  a  set  of  men  of  similar  principles,  for  the 
subordinate  instruments.  This  is  the  origir 
of  all  those  iniquitous  combinations  we  cal 
faction.  To  accomplish  this,  he  must  put  on 
as  many  shapes  as  Proteus;  he  must  ever  weai 
the  mask  of  dissimulation,  and  live  a  perpetua' 
lie.  He  will  court  the  friendship  of  every  mar 
who  is  capable  of  promoting,  and  endeavor  tc 
crush  every  man  who  is  capable  of  defeating 
his  ambitious  views." 

"The  man  Avho  aims  at  being  the  head  of  a 
faction,  for  the  end  of  domination,  will  at  first 
cloak  his  real  design  under  an  affected  zea 
for  the  service  of  the  government.  When  h< 
has  established  himself  in  power,  and  form  CM 
hi:-*  party,  all  who  support  his  measures  wil 
be  rewarded  as  his  friends,  all  who  oppos< 
him  will  be  treated  as  enemies  to  the  govern 
ment.  The  honest  and  uncorrupt  citizen  wil 
be  hunted  down  as  disaffected,  and  all  his  re 
15 


nonstrances  against  maladministration  will 
>e  represented  as  proceeding  from  tliat  prin 
ciple."  "The  faction  will  estimate  the  worth 
)f  their  leader,  not  by  his  services  to  his  coun- 
xj,  for  the  good  of  the  public  will  be  looked 
upon  as  obsolete  and  chimerical;  but  his  abili- 
;y  to  gratify  and  screen  his  friends,  and  crush 
lis  opponents.  The  leader  will  fix  implic- 
Dlicit  obedience  to  his  will  as  the  test  of  merit 
.o  his  faction ;  consequently  all  ihe  dignities 
and  lucrative  posts  will  be  conferred  upon 
persons  of  that  stamp  only,  whilst  honesty  and 
Dublic  virtue  will  be  standing  marks  of  politi 
cal  reprobation.  Common  justice  will  be  de- 
lied  to  the  latter,  whilst  the  laws  will  be 
strained  or  overruled  in  favor  of  the  former." 
How  perfectly  descriptive  is  the  foregoing  of 
your  faction?  If  it  had  been  prophetic,  it 
could  not  fit  you  better  than  it  does.  It  was 
the  language  of  experience.  It  is  a  portrait 
drawn  by  a  master,  from  all  the  history  of  the 
world.  It  represented  the  demagogues  who 
have,  from  time  immemorial,  deceived  the  peo 
ple  and  ruined  them;  and  it  will  represent  all 
such  vermine  as  long  as  human  nature  shall  be 
depraved.  All  republics  have  gone  the  same 
broad  road  to  ruin.  And  whenever  the  resem 
blance  of  the  foregoing  picture  is  seen  in  any 
combination  of  men,  under  any  mask,  it  may 
be  known  for  a  certainty  that  that  party  is 
leading  their  country  to  the  precipice. 

When  I  call  your  party  a  faction,  I  wish  not 
to  be  misunderstood,  and  mean  not  to  be  mis 
represented.  That  it  is  a  faction,  a  desperate 
faction,  its  acts  prove,  when  compared  with 
the  following  approved  definition  of  faction: 

"By  a  faction  I  mean  a  number  of  citizens, 
whether  amounting  to  a  majority  or  minority 
of  the  whole,  who  are  united  and  actuated  by 
some  common  impulse  of  passion,  or  of  inter 
est,  adverse  to  tho.  rights  of  other  -citizens,  or 
to  the  permanent  and  aggregate  interests  of 
the  community."  PUBLIUS. 

All  who  belong  to  your  party  arc  not  ani 
mated  by  factious  motives;  many  are  allowed 
to  be  honest.  They  are  deluded  by  the  wily 
artifices  of  the  leaders;  but  still  they  are  a  fac 
tion,  "a paper  faction."  Pardon  me  for  obtrud 
ing  on  your  notice,  from  the  pen  of  another 
wise  man,  a  sketch  of  the  delusion  and  desper 
ation  of  "a  paper  faction." 

"In  spite  of  national  beggary,  paper  money 
has  still  its  advocates,  and  probably,  of  late, 
its  martyrs.  In  defiance  of  demonstration, 
knaves  will  continue  to  proselyte  fools,  and 
keep  a  paper  money  faction  alive.  They  (the 
people)  will  remain  as  blind,  as  credulous,  as 
irritable  as  ever;  ambitious  men,  and  those 
whose  characters  and  fortunes  are  blasted,  will 
not  be  wanting  to  deceive  and  inflame  them 
openly  or  by  intrigue." 

This  was  written  of  the  continental  paper, 
and  in  particular  reference  to  the  debtor  faction 
headed  by  Shays.  And  why  should  it  not  ap 
ply  to  your  paper  and  your  faction?  It 
does  exactly.  What  should  be  in  that  Shays? 
Why  should  that  name  be  sounded  more  than 
yours?  Write  them  together — yours  is  as  fair  a 


114 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


name;  sound  them,  it  doth  become  the  mouth  as 
•well;  weigh  them,  it  is  as  heavy;  conjure  them, 
Desha  will  start  a  spirit  as  goon  as  Shays" 
But  the  constitution  was  too  strong  for  Shays. 
It  will  overcome  the  Governor.  The  people 
put  down  him,  and  they  will  subdue  you.  He 
led  an  insurrection  against  his  government  to 
enforce  paper  relief.  You  propose  to  lead  to 
insurrection  against  our  constitution,  to  effect 
the  same  purpose. 

I  know,  sir,  that  you  have  denounced  the 
paper  system,  and  the  relief  system,  as  ruin 
ous  and  iniquitous.  I  know  that  you  have 
claimed  merit  (as  you  said)  for  being  opposed 
to  them.  You  have  said  that  they  were  un 
constitutional!  Yes,  sir,  you  have  said  pub 
licly,  "the  relief  system,  or  at  least  some  of  it, 
is  unconstitutional,"  and  will  not  dare  to  deny 
it.  If  you  do,  I  am  authorized  to  say,  there  is 
abundant  proof  of  the  fact.  I  know  too,  sir, 
thai  you  have  said,  "I  am  no  judge  breaker. 
The  j'udges  of  the  court  of  appeals  have  a  right 
to  declare  legislative  acts  unconstitutional;  and 
it  is  their  duty  to  do  so,  when  they  belive  so; 
and  for  an  honest  opinion  they  should  not  be 
removed  from  office."  This  too,  I  say  on  au 
thority,  can  be  proven.  Indeed,  you  have  been 
publicly  charged  with  these  things,  and  they 
have  not  yet  been  denied.  Still  you  do  all  you 
can  to  enforce  this  unconstitutional  system, 
and  degrade  those  honest  judges.  For  this 
you  were  elected;  and,  whatever  you  may  say, 
1  am  disposed  to  judge  you  by  your  deeds.  I 
never  believed  that  you  were,  at  heart,  friend 
ly  to  relief,  or  relief  men.  You  have  not  the 
benevolence  or  the  sensibility  for  distress  which 
dignifies  the  errors  of  a  cordial  relief  man. 
Whose  misfortunes  did  you  ever  alleviate? 
Whose  distress  did  you  ever  relieve?  What 
widow's  tears  did  you  ever  dry  up?  What  or 
phan's  cries  did  you  ever  hush?  What  poor 
man  ever  blessed  your  bounty?  What  occu 
pant  holds  his  fireside  by  your  favor?  Your 
fortune  is  ample;  but  to  none  has  it  adminis 
tered  relief.  Yet  relief  elected  you,  and  you 
you  are  pledged  to  enfoice  it  "through  scenes 
yet  untried." 

If  you  are  opposed  to  the  paper  system,  what 
is  your  object?  What  do  you  mean?  Why  so 
much  noise — so  much  violence?  1  will  tell 
you,  sir.  Your  ambition  craved  the  office  of 
Governor.  It  was  impossible  for  you  to  suc 
ceed,  unless  you  couid  be  taken  up  by  one 
party,  or  the  other.  It  is  said  that  you  offered 
vourself  to  the  constitutional  party,  and  that 
they  (as  a  matter  of  course)  rejected  you. 
This  I  do  not  know,  but  have  often  heard, 
and  do  believe.  You  then  gave  in  your 
adhesion  to  the  other  party,  who  are  ever 
ready  to  make,  and  to  receive  proselytes, 
by  any  means.  You  then  became  the  bosom 
friend  of  men  whom  you  had  hated,  and  who 
had  denounced  you  publicly.  The  whole  par 
ty  voted  for  you;  and  many  of  the  other  party 
supported  you  because  you  told  thorn  that  you 
wercnorolfef  man,  no  judge-breaker;  and  thus 
you  became  a  governor.  To  consolidate  your 
new  party,  you  have  spared  no  pains.  You 
have  done  everything  which  they  could  desire, 


and  even  more  than  they  approve.  You  and 
they  have  slandered  the  judges;  you  have,  tra 
duced  the  old  patriarchs  of  the  age;  you  have 
profaned  the  name  of  Jefferson,  and  Patrick 
Henry,  by  prostituting  them  to  your  unholy 
purposes,  and  subscribing  them  to  doctrines 
which  they  have  been  eminently  distinguished 
for  combatting  and  decrying.  You  have  kept, 
up  a  tornado  ever  since  your  election;  and,  I 
repeat  it,  the  government  is  given  up  to  the 
passions  of  men.  All  this  has  been  done,  and 
is  doing  to  secure  money,  office  and  power,  to 
those  who,  by  fair  and  honest  means,  could 
never  enjoy  either.  And  yet  you  call  your 
selves  republicans,  and  those  who  will  not  do 
you  homage,  tories!  D'o  you  know  what  you 
are  doing?  Every  state  ii:  the  Union  is  opposed 
to  your  party,  and  astonished  at  its  success. 
And  have  "the  people  of  the  whole  United 
States  become  tories?  Have  they  all  become 
traitors  to  the  principles  of  J76?  Are  they  all 
enemies  to  popular  government  and  to  liberty? 
No,  sir;  it  is  you  that  are  the  apostates  from  the 
old  school — you  that  are  the  enemies  of  equali 
ty  and  freedom.  The  people  of  the  Union 
look  on  your  course  as  one  tending  directly  to 
anarchy  and  confusion — as  subversive  of  order 
and  security,  and  therefore  they  deprecate 
vengeance  on  your  ambitious  leaders.  Thev 
know  the  value  of  liberty,  and  they  know  how 
alone  it  is  to  be  preserved,  and  they  know  that 
you  are  driving  us  on  the  high  road  to  ruin. 

Suffer  me  to  oiler  you  one  more  extract  from 
the  productions  of  a  wise  man,  on  the  delusions 
and  distractions  of  a  debtor  faction  in  the  U. 
States,  shortly  after  the  revolution: 

"To  a  philosophical  observer,  the  present 
confusion  will  afford  an  inexhaustable  fund  of 
astonishment  and  concern.  He  will  behold 
men  who  have  been  civilized,  returning  to  bar- 
barianism,  and  threatening  to  become  fiercer 
than  the  savage  children  of  nature,  in  propor 
tion  to  the  multitude  of  their  wants,  and  the 
cultivated  violence  of  their  passions.  He  will 
see  them  weary  of  liberty  and  unworthy  of  it; 
arming  their  sacrilegious  hands  against  it, 
though  it  was  bought  with  their  blood,  and 
was  once  the  darling  pride  of  their  hearts; 
complaining  of  oppression,  because  the  law 
which  has  not  forbidden,  has  not  also  enforced 
cheating;  endeavoring  to  oppose  society  against 
morality,  and  to  associate  freemen  against 
freedom." 

The  party  hen.-  portrayed  were  such  precise 
ly  as  yours — their  objects  the  same,  their  argu 
ments  the  same.  The  liberty  which  they  op 
posed  was  the  liberty  of  the 'constitution';  that 
which  they  vindicated  was  their  own  arbitrary 
will — the  liberty  of  doing  whatever  they 
pleased.  Paper  relief,  legislative  relief,  was 
more  necessary  then  than  now,  and  would 
have  been  more  excusable.  But  it.  was  de 
nounced,  and  its  advocates  silenced,  by  the 
virtue  and  intelligence  of  those  who  were  wiser 
and  better  than  we — by  men  who  have  giveii 
us  freedom — and  some  of  whom  vou  now  slan 
der,  by  employing  your  name  in  support  of 
your  wild  doctrines. 

Other    states    arc    going  on    prosperously. 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


115 


•without  a  Desha  or  his  republicanism.  They 
are  much  happier,  and  freer  too,  than  Ken- 
tuckians.  But  they  have  not  discovered  your 
new  mode  of  making  great  men — of  living 
without  work,  of  happiness  without  virtue,  of 
liberty  without  law. 

You  may  go  on  careering  over  the  constitu 
tion;  you  may  enjoy  your  ephemeral  power, 
and  riot  over  the  rights  of  the  people,  and  the 
character  of  your  state;  but  I  tell  you,  the  pa 
triot's  and  the  poet's  malediction  awaits  all 
those  who  rise  on  the  ruins  of  their  country's 
constitution  and  peace — 
"Oh,  is  there  not  some  chosen  curse, 
Some  hidden  thunder  in  the  store  of  heaven, 
Red  with  uncommon  wrath  to  blast  the  wretch 
Who  owes  his  greatness  to  his  country's  ruin!" 

PLEBIAN. 


TO    THE  GOVERNOR   ELECT   OF  KEN 
TUCKY— No.  v. 

'•Innocence  shall  make  false,  accusation  blush, 
and  tyranny  tremble  at  patience." 
Your  relief  system,  conceived  in  the  spirit  of 


but  like  Shad* 
ustained  by  the 


call  them  "perverse"  judge 
well  seem  "perverse."   The 


had  to  pass  through  the  furnace; 
rack,  Meshack  and  Abcdnigo,  si 
justice  of  their  cause,  they  have  come  out  un 
hurt  and  triumphant.  Their  motto  was,  ''Be 
just  and  fear  not."  In  them  virtue  and  justice 
were  persecuted;  and  in  them  virtue  and  jus 
tice  have  triumphed,  and  will  continue  still 
more  to  triumph.  In  the  closing  sentence  of 
your  famous  message,  at  the  close  of  the  late 
legislature,  you 
To  you  they  may 
have  checked  you  in  your  desolating  career. 
Their  firmness  has  resisted  your  strides  to 
power,  aud  their  purity  has  'conquered  and 
baffled  all  your  corrupting  expedients.  They 
have  stood  at  their  posts,  and  warned  the  peo 
ple  of  the  savage  enemy's  approach.  They 
have  saved  the  temple  from  rapine,  and  have 
laughed  at  your  threats,  and  spurned  your  of 
fers.  Caesar  called  old  Cato  "perverse."  Charles 
and  his  minions  denounced  Hampden,  and 
Russel,  and  Sydney,  for  being  "perverse." 
The  Washingtons,  and  Franklins,  and  Jeffer- 
sons,  and  Adamses,  of  '76,  were  most  "per 
verse."  And  so  are  John  Boyle,  William  Ows- 
ley ,  and  Benjamin  Mills,  "perverse."  They 
defend  their  own  purity,  and  the  people's  con- 


injustice,  has  been  nourished  by  the  sweat  of  stitution,  fearless  of  all  consequences;  and 
the  laborious,  and  plunder  of  the  honest.  this  t.hev  havo.  indeed  bfipn  "nprvpvsp."     Tl 

To  consummate  its  ambitious  ends,  it  be 
came  necessary  to  slander  and  degrade  the 


s  of  the  court  of  appeals;  and  in  the 
work  of  defamation,  you  and  your  "cabal" 
have  proven  yourselves  worthy  of  your  voca 
tion.  In  calumny  and  falsehood,  Rivington, 
Callender  and  Cobbett,  have  been  outstripped. 
You  have  had  the  hardihood  and  impudence 
to  charge  on  the  judges,  sins  of  which  your 
selves  were  guilty,  and  the  pernicious  effects 
of  which  they  and  their  friends  were  endeav 
oring  to  counteract.  You  hated  them  because 
they  were  honest,  and  dreaded  them  because 
they  would  not  be  intimidated  and  could  not 
be  bought.  You  saw  that  they  must  be  crushed, 
or  you  and  your  leading  coadjutors  must  sink 
to  that  infamy  to  which  you  have  striven  to 
reduce  them.  Your  crusade  against  the  judi- 
ciary  has  no  parallel  in  the  civilized  world.  It 


. 

this  they  have  indeed  been  "perverse."  They 
are  not  like  your  "new  judges,"  suppliant  and 
subservient.  They  are  such  men  as  should 


ever  fill  the  supreme  bench.  May  our  liberty 
forever  have  such  champions,  and  our  consti 
tution  forever  have  such  guardians.  May  the 
poor  always  find  such  friends,  and  the  tyrant 
and  the  knave  always  meet  such  adversaries. 
By  your  calumnies  and  cruel  and  unrelent 
ing  persecutions,  you  have  given  these  men  a 
fame  that  will  endure  for  ages.  They  are 
even  now  viewed  as  living  monuments  of  a 
virtue  and  patriotism  worthy  of  the  admiration 
of  the  best  men.  Posterity  will  feel  for  their 
memories  the  gratitude  due  to  benefactors. 
Whilst  you  and  your  colleagues  in  conspiracy 
against  the  constitution,  will  be  execrated  as 
the  Pisistratedi,  the  Clodii,  and  the  Catalines 
of  Kentucky,  those  abused  judges  will  b«  re- 

._._ __  vered  as  the  Solons,  theBruti,  and  the  Catos  of 

can  plead  no  apology  of  misdirected  zeal  for  jthe  age.     They  have  enemies  now;  so  has  had 
the  public  welfare,  or  of  honest  infatuation. —  '  virtue  in  all  time;     They   will  have  enemies 


It  was  barefaced  ambition  which  prompted 
you,  and  your  reward  was  to  be  the  delight  of 
standing  on  the  ruins  of  your  own  hands,  and 
domineering  over  the  constitution  and  its 
friends.  But  the  drama  is  winding  up;  and 
you  may  feel  perturbation  for  your  own  safety. 
The  graves  which  you  have  been  digging  for 
the  judges  must  be  tenanted  by  yourselves;  and 
you  must  swing  on  that  gallows  which  you 
have  erected  for  the  virtuous  and  innocent. 
REMEMBER  HAMAN  and  MORDECAI. 
Know,  that  however  much  you  have  tyrannized 
and  strutted,  and  puffed  with  a  little  brief  au 
thority,  thero  is  a  power  above  you,  and  that 
(hat  power  WILL  RULE;  malice  will  be  dis 
appointed  of  its  victim,  envy  of  its  reward. 

You  have  subjected  the  judges  to  the  ordeal 
of  fire.  Because,  they  refused  to  bow  to  you 
and  idolize  yon  as  the-  true  oracles,  they  have 


while  they  live;  so  had  Cato,  so  had  Brutus,  so 
had  Washington — even  so  had  Jesus  Christ, 
Vice  and  envy  will  hate  virtue  and  merit.  But 
the  time  will  come  when  all  will  marvel  that 
these  "old  judges"  were  not  respected  and  ap 
plauded  by  all.  Even  now,  sir,  their  "INNO 
CENCE"  is  beginning  to  make  your  "false  ac 
cusation  blush,"  and  your  "TYRANNY"  Is- 
beginning  to  "tremble  at  their  psttiencc." 


What  is  your  ultimate  hope?  What  is  your 
real  object  in  your  unprecedented,  "perverse," 
and  calumnious  warfare  against  the  judiciary? 
You  say  that  you  were  never  an  admirer  of  the 
relief  system.  Yov«-  party  say  that  there  is  no 
relief  party  now  in  the  state;  and  the  relief 
laws  having. been  found  to  be  either  unconsti 
tutional  or  unjust,  or  both,  have  been  revealed, 
Why  then  this  interminable  and  virulent  con 
troversy  about  the  judges? 


116 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


That  the  old  judges  arc  honest  men,  you 
dare  not  deny.  You  havo  offered  to  re-corn- 
inission  them!  That  they  are  able  men,  their 
decisions  prove  beyond  cavil  or  doubt.  The 
chief  justice  has  been  an  ornament  of  the 
bench  for  17  years.  He  is  a  tried  patriot — a 
republican  of  the  old  school.  He  is  mod 
est,  pure,  moral,  wise,  experienced,  firm,  just, 
and  incorruptible.  What  move  do  you  want? 
What  more  do  you  expect?  If  you  expect  any 
judge  in  Kentucky  to  possess  more  or  higher 
qualifications  for  'his  station,  yon  expect  more 
man  is  attainable.  You  will  not  find  the  man. 
Do  not  such  men  as  Boyle  suit  your  interests  or 
yoiir  places?  They  do  not;  and  here  is  the  se 
cret.  You  have  no  such  men  among  your  par- 
tizans.  It  would  be  an  insult  to  common  sense 
and  a  mockery  of  virtue,  to  draw  a  parallel  be 
tween  your  Bibbs,  your  Barry  s,  and  your  Hag- 
gins,  and  JOHN  BOYLE.  They  are  his 
equal  in  no  one  quality  that  is  good  or  great. 
He  and  they  are  antipodes.  What  does  your 
great  oracle,  John  Kowan,  now  say  of  John 
Boyle?  I  will  tell  you,  sir.  He  says  that 
"Boyle  is  a  virtuous  man,  and  a  splendid  judge, 
and  that  he  always  thought  so."  If  you  all  had 
succeeded  in  your  aims,  as  Rowan  has  done, 
you  would  speak  the  same  language.  But  he 
found  his  way  to  the  Senate  of  the  United 
States  by  calumniating  Boyle,  and  you  and 
your  ambitious  co-operators  are  following  his 
example,  expecting  similar  success  by  like 
means.  You  will  fail.  You  have  presumed 
too  much  on  popular  ignorance  and  credulity. 
You  have  calculated  too  much  on  the  efficiency 
of  epithets.  The  people  are  virtuous,  and  they 
are  wiser  than  you  suppose.  They  begin  to 
understand  you,  and  your  race  of  popularity  is 
run — your  days  are  numbered,  and  Tekel  is 
inscribed  on  your  front.  Your  pharisaical  hy 
pocrisy  and  pretensions  will  not  longer  avail 
you.  You  love  the  people  too  much! 

John  Boyle  is  above  the  reach  of  your  cal 
umny;  your  breath  can  never  blast  him.  He  has 
lived  too  long,  too  usefully,  too  nobly,  to  be  the 
victim  of  your  detraction,  or  of  your  persecution. 
As  a  man,  he  is,  in  all  the  social  and  civil  rela 
tions,  irreproachable;  as  a  politician,  he  has  ever 
beenjpatriotic  and  undeviating;  as  a  jurist,  he  is 
learned,  upright,  and  eminent,  and  his  fame  is 
extensive  and  honorable  to  him,  and  creditable 
to  the  state  of  which  he  is  a  distinguished  citi 
zen.  His  whole  character,  sir,  is  above  re 
proach.  The  viper  that  strikes  at  him,  gnaws 
a  file.  By  his  own  unassisted  merits,  he  has 
earned  an  enviable  pre-eminence.  He  inherit 
ed  no  fortune;  no  patrician  blood  ennobled  his 
veins;  no  ancient  heraldry  emblazoned  his 
name.  Self-dependent  and  self-taught,  he  has 
carved  out  his  own  fame.  A  "novus  Itornp,"  he 
has,  br  merit  of  no  common  cast,  won  distinc 
tion.  "His  unpretending  talents  and  unosten 
tatious  virtues,  have  drawn  around  him  the 
confidence-  and  esteem  of  wise  and  good  men. 

When  in  Congress,  he  was  the  friend 
Jefferson,  whilst  your  Rowan  was  his  rcvilov; 
and  Jefferson  tlien  was,  and  now  i;-,  Boyle's 
i'riend.  He  knew  his  worth,  and  as  n  testimo 


nial  of  his  high  opinion  of  it,  he  was  desirous 
in  1807  to  appoint  himajndge  of  the  Supreme 
Court  of  the  United  States.  In  March  1809, 
Mr.  Madison,  unsolicited,  tendered  to  him  the 
office  of  Governor  of  Illinois,  one  of  the  most 
responsible  and  most  honorable  under  the 
general  government.  On  his  return  home,  he 
was  invited  by  Gov.  Scott  to  the  Court  of  Ap. 
peals'  bench.  His  attachments  to  Kentucky 
overcame  his  judgment,  his  sense  of  interest 
and  his  ambition,  and  he  gave  up  his  governor 
ship,  (which  the  then  chief  justice  of  the  state 
resigned  his  office  to  accept,)  and  consented 
to  be  a  judge,  with  a  salary  inadequate,  and 
with  duties  to  perform  which  were  appalling. 
Without  a  competent  reward,  influenced  only 
by  a  wish  to  serve  his  state,  he  has  ever  since 
toiled  on  the  bench,  (the  most  toilsome  of  all 
official  stations,)  until  he  has  become  poor,  and 
has  literally  grown  grey  in  the  service  of  his 
country. 

His  virtues  have  adorned  this  bench;  his  tal 
ents  have  thrown  a  lustre  around  it.  His  name 
is  identified  with  its  history  and  its  fame.  If, 
as  others  have  done,  he  had  consulted  his  in 
terest  or  his  ease,  he  might  now  have  been  in 
comparative  affluence,  and  exempt  from  the 
annoyance  of  a  Governor  and  a  party,  who 
dread  his  inflexibility,  and  some  of  whom  cov 
et  his  office  and  sicken  at  his  just  fame. 

And  shall  snch  a  man  be  prostrated  by  the 
Governor,  and  Rowan,  and  Bibb,  and  Barry? 
Shall  HE  be  blasted  by  their  envy,  or  supplant 
ed  by  their  ambition?  JUSTICE  says  NO!— 
Kentucky  says  NO! 

He  never  sought  office,  he  never  shrank  from 
duty;  and  shall  his  country  give  him  up  to  his 
and  her  enemies?  Let  such  folly  never  mark 
her  counsels — let  such  ingratitude  never  sully 
her  escutcheon;  He  stands  in  the  breach  which 
ambition  has  made  in  the  constitution;  and 
whenever  he  falls  a  victim  to  your  rapacity, 
his  country's  cause  and  his  country's  welfare 
will  fall  with  him.  Whenever  he  is  immola 
ted  to  satiate  your  vengeance,  the  incense 
which  ascends  from  the  altar  of  his  sacrifice 
will  be  mingled  with  the  smoke  of  a  consumed 
constitution.  Around  his  destiny,  in  this  cri 
sis,  that  of  the  constitution  is  indissolubly  en 
twined.  He  stands  on  the  last  rampart  which 
protects  the  constitution  from  your  Vandal  as 
saults.  If  you  can  strike  him  down  and  pass 
this  barrier,  you  at  once  enter  the  citadel  and 
give  it  up  to  violence.  Your  will  is  then  the 
constitution.  At  such  a  catastrophe,  the  pa 
triot  might  indeed  exclaim,  "0  tempera,  O 
mores!"  And  then  it  would  be  but  right  and 
natural  for  a  Boyle,  like  tecipio  Africanus,  in 
the  fervor  of  a  holy  resentment,  to  bequeath  his 
curses  to  the  ungrateful  country  which  he  hud 
so  faithfully  served  and  so  long  illustrated, 
and  his  ashes,  to  strangers,  in  the  memorable 
epitaph,  "O,  UNGRATEFUL  COUNTRY!  THOU  SHALT 
NOT  HAVK  MV  BONES!"  But  he  will  never  be 
driven  to  this  sad  extremity.  Kentucky  wil] 
not  be  reproached  with  the  ungrateful  neglect, 
of  a  Bcllisarius,  or  the  exile  of  an  Aristides. 
Boyle  and  the  constitution  will  hold  out  to 
the  last,  and  signally  triumph  over  the  Gov- 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


117 


ernor  and  his  faction.  They  are  placed  on  a 
rock  which  you  cannot  shake.  1  our  arrows 
fall  at  its  base.  They  will  yet  recoil  on  the 
heads  of  those  whose  parricidal  arms  aimed 
them  at  the  PEOPLE'S  PANOPLY. 

Of  William  Owsley,  either  sis  a  man  or  as 
a  judge,  no  one,  without  falsehood,  can  utter 
any  thing  reproachful  or  derogatory.  He  is 
amiable  and  moral,  prudent,  just,  exemplary 
in  all  his  conduct,  private  and  public.  He  is 
an  enlighted  and  faithful  judge.  He  would 
adorn  any  bench.  This  is  "multum  in  parvo;" 
it  is  saying  a  great  deal  in  a  few  words;  but  not 
more  than  those  who  know  him  well,  will  ap 
prove.  None  of  your  party  deny  that  Mills  is 
an  able  judge,  and  very  few  doubt  that  he  is  a 
Christian.  You  know,  sir,  he  is  "ortus  a  quer- 
co,  non  a  silice" — a  bough  from  the  oak,  and 
not  from  the  willow. 

These  are  the  men  against  whom  you  have 
been  waging  war.  They  are  shielded  by  vir 
tue;  they  are  supported  by  merit;  they  protect 
and  are  protected  by  the  constitution;  and 
however  much  you  may  laugh  at  these  de 
fences,  you  will  find  them  too  strong  for  your 
cunning  or  your  force. 

In  all  the  fury  of  your  warfare,  what  has 
been  the  burthen  of  your  war-song?  This,  and 
this  only — that  these  "old"  judges,  these '-per 
verse"  judges  decided,  that  "no  citizen  can  be 
compelled  to  accept  paper  money  in  discharge 
of  a  specie  debt;"  that  "nothing  but  gold  or 
silver  shall  be  made  a  tender;"  that  "justice 
shall  be  administered  without  sale,  denial  or 
delay;"  that  "no  ex  post  facto  law,  or  law  im 
pairing  the  obligation  of  contracts,  shall  be 
passed;"  that  "the  people  are  above  the  legis- 
ture;"  that  "the  constitution  is  the  supreme 
law  of  the  land;"  that  "all  legislative  acts  con 
trary  thereto  are  void;"  that  "debtors  may  be 
compelled  to  pay  their  debts  according  to  con 
tract;"  and  that  "the  constitution  will  protect 
all  freemen  in  the  enjoyment  of  their  rights." 
And  is  not  all  this  just?  Is  it  not  all  right? 
You  dare  not  say  that  it  is  wrong.  You  ad 
mit  that  it  was  the  duty  of  the  judges  to  decide 
on  the  constitutionality  of  the  acts  of  the  legis 
lature.  What  crime  then  have  they  commit 
ted?  Did  they  decide  wrong?  I  say  no.  The 
people  in  every  state  in  the  Union  say  no. 
Every  Supreme  Court  in  America  says  no. 
Those  who  formed  the  constitution  say  no. 
Justice  says  no.  Reason  says  no.  NO  i 
echoed  from  every  quarter,  except  from  you  and 
your  party;  and  if  it  were  not  your  interest  to 
say  yes,  you  too  would  say  no.  On  this  topic 
I  shall  touch  more,  and  more  fully,  in  a  sub 
sequent  number. 

But  suppose  the  decision  is  wrong;  are  not 
the  judges  honest?  Has  the  decision  been  en 
forced!  Has  not  the  relief  system,  which  it  af 
fected,  been  repealed?  Whether  the  decision 
was  right  or  wrong,  would  not  the  opinion  of 
the  Supreme  Court  confirm  or  reverse  it?  "Why 
then  all  your  clamor  about  the  judges?  Why 
has  "Ocean  been  into  tempest  tost,  to  waft  a 
feather  or  drown  a  fly?"  Sir,  this  decision  has 
been  only  a  pretext;  power  was  your  end; 
fraud  and  hypocrisy  have  been  your  means. 


You  opened  your  war  by  misrepresenting  the 
decision  of  the  court;  and  without  attempting 
to  deny  the  correctness  of  its  principle,  you 
endeavored,  by  perverting  and  distorting  it,  to 
excite  prejudice  against  the  court.  You  have 
been  fighting  a  windmill,  Quixote-like.  You 
made  a.  monster,  and  then  valorously  encoun 
tered  it,  with  all  your  artillery  and  small 
arms.  You  talked  about  the  soverignty  of  the 
people,  that  is,  the  omnipotence  of  the  legisla 
ture.  You  spoke  of  usurpation.  There  was 
as  much  vociferation  about  right  and  remedy. 
All  these  abstract  notions  had  no  application, 
and  you  knew  that  they  had  none.  But  you 
hoped  to  be  able  to  amuse  and  delude  a  major 
ity  of  the  people. 

Fearing  that  this  artifice  would  fail,  you  re 
sorted  to  opprobrious  names;  you  called  the 
judges  "KINGS,"  and  those  who  defended 
them  "TORIES." 

You  expected  to  overawe  your  opponents 
and  intimidate  the  judges.  Your  attempts 
were  abortive.  They 'have  only  produced  con 
fusion,  and  will  end  in  your  own  discomfiture 
and  degradation.  The  judges  have  not  re 
signed.  They  will  not  resign,  until  they  can 
do  so  voluntarily,  and  honorably  to  themselves 
and  safely  to  the  constitution.  They  do  not  de 
sire  to  continue  in  office.  Why  should  they? 
They  receive  no  salary;  and  you  have  degra 
ded  the  court  until  its  honors  are  threadbare. 
But  you  have  not  suffered  them  to  resign. 
You  have  been  striving  to  force  them  from  of 
fice  by  abuse,  and  by  unconstitutional  legisla 
tion. 

Through  them  you  have  done  violence  to  the 
constitution;  and  if  they  succumb  to  you,  the 
principles  of  that  charter  are,  by  them,  sur 
rendered. 

They  have  given  a  pledge  that  they  will  re 
sign  as  soon  as  the  constitutional  question  is 
settled,  and  a  governor  is  elected  by  the  peo 
ple  to  whom  they  can  confide  the  appointment 
of  successors. 

But  this  will  not  satisfy  you.  You  wish  to 
enjoy  a  triumph  over  them  and  the  principles 
which  they  uphold,  before  you  retire  from  the 
arena.  You  are  impatient  to  fill  the  judgment 
seats  with  your  creatures  and  your  parasites. 
They,  too,  are  impatient.  They  can  wait  no 
longer.  And  they  fear  that  when  the  people 
shall  have  an  opportunity  to  elect  another  gov 
ernor,  he  will  be  an  upright  and  enlightened 
man,  who  will  not  countenance  their  doctrines, 
nor  promote  their  selfish  and  ambitious  ends. 

Whenever  the  "old  judges"  retire  from  the 
bench,  it  will  be  difficult  to  fill  their  vacant 
seats  as  they  filled  them.  You  will  not  live 
to  see  it  done.  We  have  not  the  men  who 
WILL  do  it,  nor  who,  if  they  would,  CAN  do 
it.  It  will  be  long  before  we~  shall  see  another 
Boyle  on  the  bench;  another  chief  justice  with 
his  urbanity,  his  learning,  his  purity,  his  in 
flexibility,  and  his  EXPERIENCE.  But  1  as 
sure  you,  sir,  that  WHENEVER  THE  CON 
STITUTION  SHALL  TRIUMPH,  OR  THE 
PEOPLE  SHALL  BE  ALLOWED  TO  ACT, 
these  venerable  judges  whom  you  have  so 
much  traduced,  will  retire  from  a  service  in 


118 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


which  they  have  wasted  their  strength,  and 
been  compelled  patiently  to  endure  the  vilest 
slander. 

When  they  retire,  the  approbation  and  ap 
plause  and  gratitude  of  an  injured  and  insult 
ed  people  will  follow  them;  the  constitution 
will  be  renovated;  and  they  will  enjoy  that  re 
ward  which  you  will  never  feel,  and  "know  not 
how  to  value — the  consolation  of  having  done 
their  duty  with  purity,  constancy  and  fidelity. 
Their's  irill  be  a  reward  which  you  can  never 
give  nor  take  away. 

"What  nothing  earthly  gives  or  can  destroy, 
The  soul's  calm  sunshine,  the  heartfelt  joy, 
Is  VIRTUE'S  prize  " 

A  PLEBIAN. 


TO    THE    GOVERNOR  ELECT  OF  KEN 
TUCKY.— No.  VI. 

•'Nee  luisse  pudet  scd  non  incendire ludem." 

HORACE. 

("Once  to  be  wild  is  not  a  foul  disgrace; 
The  blame  is,  TO  PURSUE  THE  FRANTIC  RACE.") 

"Datveniam  corvis,  vexat  censura  columbos." 

JUVENAL. 

(Censure  pardons  the  crows,  whilst  it  har 
asses  the  doves.") 

The  first  censures  which  your  party  de 
nounced  on  the  judges,  might  have  been  for 
given  and  overlooked.  They  might  have  been 
attributed  to  the  occasional  ebullitions  of  par- 
tip  an  resentments;  they  might  have  been  pro 
voked  by  the  collision  of  honest  opinions,  be 
lieving,  as  some  no  doubt  did,  that  the  judges 
had  erred.  Your  party,  before  you  were  initia 
ted,  rebuked  the  judges  very  freely;  they  an 
imadverted  boldly,  and  even  virulently,  on 
the  supposed  principles  of  their  memorable 
decision.  But  they  did  not  venture  to  profane 
the  constitution.  They  vented  their  feelings 
in  VERBOSITY.  Their  steam  was  conducted  off 
by  resolutions  and  preambles,  Ac.,  and  evapo 
rated  without  endangering  the  safety-valve  of 
the  political  machine.  But  you  are  more  dar 
ing.  As  soon  as  you  were  placed  at  the  head 
of  the  party,  new  scenes  open — scenes  of  vio 
lence  and  licentiousness.  You  sacrilegiously 
invade  the  constitution;  and  yours  is  not  a  war 
of  words,  but  of  deeds.  You  organize  your 
party;  tell  them  that  the  Rubicon  is  passed,  and 
resolve  to  be  "AUT  CAESAR  AUT  NUL- 
LIUS"  (either  Csesar  or  nothing.)  You  en 
deavor  to  prostitute  the  judges  by  threats  and 
by  obloquy.  You  acknowledged  by  your  acts 
that  the  judges  cannot  be  constitutionally  re 
moved  from  office,  without  the  concurrence  of 
"two-thirds."  But,  disappointed  in  obtaining 
this  majority,  you  then  insidiously  resolve  to  de 
prive  them  of  salary  and  jurisdiction;  expect 
ing  that  they  would  be  compelled  to  surrender. 
You  announced  that  the  constitution  was  made 
by  the  people,  and  they  can  violate  it  if  they 
think  fit;  that  the  popular  will  is  the  constitu 
tion;  that  the  constitution  is  nothing  but  parch 


ment;  that  the  legislature  are  the  people,  &c., 
&c.,  &c.  All  this  was  preparatory  to  your  at 
tack  on  the  constitution.  You  concluded  that 
if  a  majority  could  be  prevailed  on  to  pass  an 
act,  whereby  they  could  have  a  pretext  to  say, 
that  the  judges  were  out  of  office,  the  same  ma 
jority  would  persist;  and  that  this  in  effect 
would  be  tantamount  to  a  decision  of  two- 
thirds.  By  this  course  you  hoped  that  you 
would  virtually  remove  the  f  judgeg;  that  your 
people-loving  senators  would  refuse  to  repeal 
your  act,  and  thus  you  would  harrass  the  judg 
es  and  alarm  the  people  with  anarchy,  until  it 
would  be  their  interest  to  submit  and  acqui 
esce  in  your  usurpations.  And  if  unexpected 
ly,  the  majority  should  decide  against  you,  and 
refuse  to  give  up  the  constitution,  as  a  last  re. 
source,  you  supposed  that  by  proposing  a  com 
promise,  and  talking  about  war,  and  anarchy 
and  bloodshed,  you  must  certainly  prevail.  You 
charged  the  judges  with  being  opposed  to  the 
occupant,  and  with  being  under  bank  influ 
ence;  all  which  you  knew  was  false.  By  such 
means  as  these,  you  succeeded  in  producing  a 
monetary  effervescence,  and  obtained  a  major 
ity  in  the  legislature.  You  then  tried  the  judg 
es  for  their  "CRIMES."  They  were  acquit 
ted;  and  in  despair,  lyou  then  determined  to 
disregard  the  constitution  and  the  public 
peace,  and  passed  the  re-organizing  act.  This 
was  the  catastrophe.  You  could  conceal  your 
principles  no  longer.  The  people  awoke  from 
their  slumber,  and  denounced  your  act  as  un 
constitutional  and  void.  Thus  detected  and 
convicted,  you  ask  for  "  COMPROMISE. " 
You  ask  your  adversaries  to  give  you  what  you 
have  been  contending  for,  and  what  you  passed 
the  re-organizing  act  to  achieve!  Modesty! 
where  is  thy  blush!  Hypocrisy!  where  is  thy 
mask! 

When  you  first  conceived  the  famous  act  of 
1824,  did  you  not  believe  that  it  was  unconsti 
tutional?  But  you  had  abused  the  confidence, 
and  sported  with  the  credulity  of  the  people 
so  long,  and  so  miraculously,  that  you  had  no 
fear  of  defeat. 

You  appealed  to  the  people  with  great  con  - 
fidence,  declaring  that  the  majority  must  rule 
in  all  cases  whatsoever.  Those  opposed  to  your 
unconstitutional  act — knowing  that  in  this  ex 
tremity  the  majority  was  the  last  resource,  and 
the  only  umpire,  and  believing  that  the  peo 
ple  wer«  not  so  lost  to  a  sense  of  their  obvious 
danger,  as  to  sanction  your  usrupation— joined 
in  your  appeal.  The  people  decided  the  issue 
against  you.  They  said  that  your  act  was 
\  OID.  Do  you  submit  to  this  unerring  major 
ity?  Do  you  conform  to  your  own  test  of  po 
litical  infallibility?  Do  you  acquiesce  in  the 
people's  decision?  No,  no;  this  you  never  in 
tended  to  do.  The  majority  is  right  when  it 
is  subservient  to  you;  but  when  it  is  against 
you,  it  is  wrong.  You  say  that  this  majority 
who  must  govern  in  all  cases,  was  deceived, 
BRIBPID;  and  therefore  you  will  not  submit 
tothe  award.  Well,  if  the  people  were  delu 
ded  or  bribed  last  year,  may  not  the  same 
things  occur  this  year?  And  when,  shall  we 


TO  THE  GOVERNOR  BLBGT  OF  KENTUCKY. 


119 


know  that  they  understand  what  they  do,  and 
do  right?  If  they  ratify  their  decision  next 
August,  will  they  be  bribed  again?  But  sup 
pose  they  should  decide  in  your  favor,  what  ev- 
jdence  will  you  give  us,  that  they  are  not 
bought  up,  as  you  charge  them  with  having 
been  bought?  This  is  a  poor,  pitiful  subter 
fuge.  It  is  a  slander  on  the  people,  and  a 
disgrace  to  your  party. 

As  soon  as  the  result  of  the  last  election  was 
known,  you  were  busily  employed  in  devising 
ways  and  means  to  avoid  the  effect  of  the  pub 
lic  will;  to  frustrate  that  will  to  which  you 
had  appealed  as  the  supreme  arbiter.  Did  you 
and  your  judges  not  write  letters  to  certain  sen- 
a.ors  urging  them  to  disregard  the  will  of  their 
constituents,  and  promising  them  indemnity 
for  that  resistance?  Still  you  cry,  the  public 
will  must  govcm;  all  functionaries  are  respon 
sible  to  the  people!  It  is  then  resolved,  (I 
suppose  in  caucus,)  that  your  party  shall  unite 
all  their  forces,  and  throw  out  in  your  mes 
sage  all  the  inflammatory  matter  which  they 
could  jointly  produce;  and  that  they  should 
give  up  the  new  judges  and  call  on  the  people 
for  "'compromise/5  Accordingly,  the  message 
appears  f  41  of  slang  and  gall.  You  did  not 
write  it,  and  I  am  not  sure  that  you  know  what 
is  in  it;  but  being  its  putative  author,  you  are 
responsible  for  its  contents.  It  is  evidently  the 
production  of  some  disappointed,  broken-down 
man,  driven  by  envy  and  debt,  to  desperation. 

In  this  document  you  are  made  to  use  the 
following  language:  "Coming  from  the  bosom 
of  the  people,  you  are  necessarily  better  ac 
quainted  than  I  can  be,  with  their  wants  and 
their  interests."  Speaking  of  the  act  of  1824 
you  say:  "To  end  the  controversy  and  rid  the 
country  of  these  erroneous  and  dangerous  prin 
ciples,  the  majority  now  deemed  it  necessary 
to  resort  to  their  constitutional  power  of  ABOL 
ISHING  the  court,  and  ESTABLISHING  ANOTHER 
consisting  of  other  men,"  &c.  "I  have  applied 
the  best  efforts  of  my  understanding  to  learn 
the  public  interest  and  will,"  &c.  Allu 
ding  to  a  suppression  of  the  "old  judges"  as 
disturbers  of  the  peace,  you  say:  "I  need  not 
inform  the  legislature  how  unpleasant  will  be 
the  duty,  which  such  a  course  of  conduct  on 
the  part  of  the  FORMER  judges  will  impose. 
Nor  need  I  tell  them,  that,  painful  as  it  may 
be,  the  executive  will  not  shrink,"  <fcc.,  <tc. 
"AND  WERE  THE  RE-  ORGANIZING 
ACT  REPEALED,  the  same  doubts  would  ex 
tensively  hangf  around  all  the  acts  of  the  for 
mer  judges,  UNLESS  THEY  SHOULD  RE 
CEIVE  NEW  APPOINTMENTS,"  &c.,-&c. 

Patriotic  governor!  Heroic  governor!  you 
have  taken  pains  to  ascertain,  that  you  may  (to 
the  people's  will!  But  nevertheless",  whatever 
it  may  be,  the  old  judges  shall  not  enforce  their 
decrees;  and  if  they  attempt  it,  you  will  call 
out  the  militia!  This  is  your  meaning.  The 
obvious  import  of  your  language  is,  that  unless 
the  re-organizing  act  be  repealed,  the  old  judg 
es  SHALL  NOT  ACT;  and  if  it  be  repealed, 
llipysftaZZ  not  act,  UNLESS  THEY  SHALL 
BE  RE-COMMISSIONED  BY  YOU.  Thus 


you  tell  us  that  [whatever  the  people  think  is 
immaterial,  for  you  are  resolved  to  consider 
this  odious  act  constitutional,  and  therefore  the 
old  judges  as  removed  from  office;  and  that  you 
will  feel  bound  to  enforce  the  "law."  In  oth 
er  and  plainer  words,  without  any  circumlocu 
tion,  you  mean  to  say,  governor,  that  THE 
PEOPLE  SHALL  NOT  DECIDE  THIS 
QUESTION.  This  is  undisguised  TYRAN 
NY.  But  you  will  be  disappointed;  your 
threats  and  your  artifices  will  all  be  unavail 
ing.  WE,  THE  PEOPLE,  HAVE  DECI 
DED,  AND  WELL  DECIDE  THE  QUES 
TION  AT  ALL  HAZARD. 

Your  conduct  is  like  that  of  all  men  who 
aim  at  unholy  power.  It  was  the  conduct  of 
the  poj  >3s  and  the  kings  of  priest-ridden,  king- 
ridden  Spain. 

j  In  Spain  there  was  a  controversy,  in  the  llth 
century,  between  the  Musarabic  'Liturgy  and 
the  Holy  See.  The  Spaniards  contended  for 
the  ritual  of  their  ancestors:  the  popes  urged 
theirs.  It  was  proposed  to  decide  the  contest 
by  a  single  combat.  The  champions  met  and 
fought,  and  the  Musarabic  Liturgy  was  victo 
rious.  The  queen  and  the  popes  were  not  sat 
isfied;  they  insisted  on  another  trial.  The  or 
deal  was  selected.  A  fire  was  kindled;  a  copy 
of  each  ritual  was  thrown  into  it;  the  book 
which  stood  this  test  untouched,  was  to  be  the 
established  ritual.  The  Musarabic  triumphed 
again.  But  lo!  the  queen  and  popes  were  not 
yet  satisfied,  and  refused  to  submit;  and  all 
were  denounced  as  heretics  who  would  not  for 
sake  the  Musarabic  and  conform  te  the  papal 
ritual! 

I  willaot  attempt  the  parallel  between  this 
and  your  case;  nor  between  the  papal  party  of 
Spain,  and  your  party  in  Kentucky.  The  analo 
gy  is  striking,  and  requires  no  deliniation. 

After  you  have  thrown  the  country  into  up 
roa~  and  the  government  into  anarchy,  YOCr 
conplain  of  CONFUSION  AND  STRIFE,  and 
demand  a  "compromise!"  What,  sir,  is  left 
for  compromise?  Do  you  suppose  that  the  peo 
ple  are  so  weary  of  the  loathsome  contest,  as  to 
compromise  their  constitution?  You  do  their 
intelligence  and  virtue  injustice.  They  will 
not  compromise  with  you  on  your  terms.  The 
old  judges  are  either  in  office  or  out  of  office. 
The  re-organizing  act  is  cither  constitutional 
and  valid,  requiring  repeal;  or  it  is  unconsti 
tutional  and  void,  without  repeal.  This  is  the 
question.  Can  it  be  compromised?  NO,  NEV 
ER.  Much  easier  would  it  have  been  to  compro 
mise  the  right  to  levy  ship  money,  in  the  reign 
of  Charles  I.  Much  easier  would  it  have  been 
for  our  fathers  to  have  compromised  the  tea  tax 
and  stamp  act  in  '76.  These  abstract  rights 
were  not  sensibly  very  important,  but  the  prin 
ciple  was  comprehensive  and  radical.  Itwa-t 
a  question  of  freedom  or  vassalage.  So  here, 
ours  is  a  question  of  constitution  or  no  consti 
tution;  and  it  must  be  settled  by  the  people. 
Your  party  are  suddenly  very  much  afraid  of 
the  people"!  They  are  very  desirous  to  have  a 
call  of  the  legislature,  to  prevent  another  de 
cision  by  the  people.  They  say  that  there  is 


120 


TO  THE  GOVERNOR  SLECT  OF  KENTUCKY 


no  court,  and  anarchy  must  be  the  consequence. 

WHOSE:  FAULT  is  THIS?  who  produced 

this  anarchy?  Those  who  passed  the  re-or 
ganizing  act,  you  and  your  judges,  and  the  sen 
ators  who,  disregarding  the  will  of  their  con 
stituents,  refused  to  repeal  it.  But  there  is  a 
court  in  existence  which  will  do  the  people's 
business.  That  court  was  never  abolished. 
It  is  the  court  of  the  constitution — of  the  PEO 
PLE  in  CONVENTION— and  not  the  court  of 
a  FACTION  in  CAUCUS.  Be  quiet,  sir;  the 
people  have  taken  the  matter  into  their  own 
hands,  and  all  will  be  well. 

There  is  great  impudence  in  your  proposi 
tion  of  "compromise/'  A.  takes  forcible  pos 
session  of  B.'s  land,  and  rinding  that  he  cannot 
hold  it,  offers  to  compromise  by  each  claimant 


only  be  removed  by  two-thirds  of  both  houses. 
Suppose  your  compromise  agreed  to,  how  will 
you  get  clear  of  these  "perverse"  judges? 
This  will  puzzle  you.  I  suppose  yon  will  an 
swer,  "CAUCUS  THEM  OUT." 

If  the  court  of  appeals  stands  ou  a  constitu 
tional  basis,  no  compromise  can  effect  it.  If 
its  base  is  legislative,  there  is  no  necessity  for 
compromise.  Whether  it  depends  on  the  one 
or  the  other,  the  people  alone  can  determine. 

Many  were  for  compromise  with  King  George 
in  '76.  By  that  compromise  we  might  now  be 
colonists.  If  your  compromise  be  accepted, 
we  shall  in  effect  and  in  practice,  have  no  con 
stitution,  and  no  rule  of  right,  except  the  WILL 
of  those  who  govern.  After  such  a  compro 
mise,  will  not  others  hereafter  follow  your  ex 
ample,  encouraged  by  your  success? 

AND  WHAT  INTERPRETATION  WILL 
BE  GIVEN  TO  THE  CONSTITUTION? 
The  question  is  now  again  submitted  to  the 
people.  Let  them  decide  it.  Let  that  decis 
ion  DC  carried  into  effect,  and  peace  will  be  re 
stored,  the  constitution  will  be  re-established, 
and  the  "judge  question"  settled  for  ages. 

But  why  does  your  party  require  a  convoca- 

er  way.     "i  on  want  to  remove  all  constitutional  j  tion  of  thc  legislature?     Is  it  to  prevent  a  de- 
chscks  to  your  will.  cisiou  by  the  people?     If  your  senators  have 

This  department  of  the  government,  like  |  relented,  and  are  now  willing  to  vote  the  will 
each  of  the  others,  is  ordained  by  the  constitu-  of  their  constituents,  why  docs  not  your  half 
tion,  and  is  not  the  creature  of  legislative  will,  of  a  "new  court"  surrender,  and  be  peaceable 
This  is  all  we  contend  for,  and  this  must  now  citizens?  If  they  and  you  will  do  only  this 
be  settled  by  the  people.  The  question  has  al 
ready  cost  us  too  much  and  is  too  important, 
now  to  be  "compromised." 

When  you  announce  in  the  message,   that 


surrendering  to  the  SOTJ&'  of  A.     This  is  as  mod 
est  and  just  as  your  "compromise." 

If  you  can  get  clear  of  the  judges,  you  will 
have  attained  your  ultimate  object  in  relation 
to  the  court:  you  will  have  put  down  the  men, 
and  established  the  precedent.  You  desire  the 
control  of  the  judiciary,  and  the  expulsion  of  j 
its  faithful  incumbents;  and  it  will  suit  you  as 
well  to  succeed  by  "compromise"  as  in  any  oth- 

T.-*-  77      _  __»  'j.  .  .  •  ^  7 


the  judges  and  only  judges, 
have  been  thus  so  signally  i 


"the  people  are  dissatisfied  with  the  arrange 
ments  of  last  session,"  you  virtually  admit 
their  verdict  against  your  re-organizing  act. 
When  they  said  that  it  was  unconstitutional, 
did  they  not  also  say,  that  the  old  judges  are 
in  office,  and  your  "new  judges"  no  judges  at 
.ill?  And  what  was  your  plain  and  imperious 
duty?  .it  was,  to  recommend  submission  to  the 
people's  will,  and  the  observance  of  order. 
Having  failed  to  remove  the  judges  by  address, 
and  defeated  in  your  attempt  to  abolish  their 
court,  the  court  still  exists  and  they  arc  still 
But  because  you 
ignaily  defeated,  must  the 
judges  resign,  or  must  their  friends  abandon 
them  and  unite  with  you  in  prostrating  them? 
This  is  your  proposition. 

Why  did  you  not  resign  when  invited  by  sev 
enty-five  hundredths  of  the  people's  repre 
sentatives?  They  held  you  as  a  nuisance  which 
ought  to  be  abated. 

Why  did  not  your  refractory  senators  resign, 
and  give  their  constituents  a  right  to  be  heard 
in  the  Senate?  If  you  and  they  had  done  this, 
we  should  have  no  difficulty,  no  more  turmoil. 
The  only  difficulty  which  exists  has  been  pro 
duced  by  yourselves,  by  resisting  the  people's 
will.  And  now  you  say,  drive  the  old  judges 
from  office  and  we  will  bo  peaceable! 

If  you  have  the  right  to  remove  them  by  a 
legislaiive  act,  they  are  out  of  office;  if  you 
have  not  this  right,"  they  are  in  office  and  can 


much,  there  is  no  necessity  to  impose  on  a  com 
munity  whose  treasury  is  already  exhausted 
by  your  prodigality,  the  expense  of  a  called 
session  of  thc  legislature.  For,  the  re-organ  - 
ietng  act  having  been  decided  to  be  void,  if 
you  and  your  judges  will  surrender  the  re 
cords  and  forbear  your  interference,  the  court 
can  proceed  without  any  difficulty  or  obstruc 
tion.  If  thc  refractory  senators  are  determined 
still  to  be  refractory",  what  can  be  done  by  a 
called  session?  The  people  are  as  competent 
to  decide  as  their  servants,  and  they  will  once 
more  decide'at  the  polls,  IF  YOU  WILL  I-KRMIT 
THEM  TO  no  so;  and  then,  if  you  desire  a  res 
toration  of  order,  you  can  call  the  new  legisla 
ture.  But  we  protest  against  any  unnecessa 
ry  convention.  You  have  wasted  too  much  of 
our  money  already,  in  unprofitable  warfare 
with  the  judiciary.  Thousands  have  been 
thrown  away  in  this  humiliating  contest. 

Is  the  principle  of  thc  controversy  impor 
tant?  How  then  can  you,  after  expending  so 
much  time  and  money,  compromise  it?  How 
can  we  compromise  it?  If  it  be  not  very  es 
sential,  why  do  you  not  avert  the  calamities 
which  you  seem  to  apprehend,  by  acquiescing 
in  the  people's  decision?  By  doing  this,  you 
sacrifice  no  principle;  you  do  not  admit  the  in 
validity  of  the  re-organizing  net,  but  only  ad 
mit  the  people's  right  to  govern.  If,  last  win 
ter,  thc  senate  had "united  with  the  other  house 
in  repealing  the  act,  they  would  not  necessa 
rily  have  compromittod  principle.  If  they  had 
the  right  to  pass  thc  act,  they  had  the  right  to 
repeal  it.  To  do  so  certainly  would  not  have 
been  unconstitutional.  And  its  repeal  would 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


121 


not  have  been  considered  as  evidence  conclu 
sive  of  their  conviction  of  its  unconstitution 
ally,  but  only  of  its  inexpediency,  and  the 
wish  of  the  people  that  it  should  be  repealed. 

But  on  the  other  side,  there  can  bs  no  com 
promise,  without  the  surrender  of  the  total 
principle — of  everything  in  controversy.  We 
insist  that  the  act  is  unconstitutional.  "We 
can  never,  even  indirectly  or  tacitly,  acknowl 
edge  its  efficacy  to  any  extent  or  for  any  pur 
pose,  as  we  must  do  if  we  agree  to  the  expul 
sion  of  the  old  judges  and  the  construction  of 
anew  court.  "tVe contend  that  the  judiciary  is 
one  of  the  departments  of  the  government  or 
dained  by  the  constitution,  when  it  declares 
that  there  shall  be  three  departments.  We  in 
sist  that  this  department  cannot  be  abolished 
by  the  legislature;  nor  the  judges  of  the  court 
of  appeals  removed  from  office  in  any  other 
modes  than  one  of  those  prescribed  in  the 
constitution.  These  are  vital  principles,  which 
we  can  never  compromise.  If  it  was  impor 
tant  to  construct  the  government  on  three  pil 
lars,  it  is  equally  essential  to  preserve  the  whole 
three,  in  their  proper  places,  and  with  all  their 
strength. 

Is  the  re-organizing  act  unconstitutional? 
Then  the  old  judges  are  in  office.  If  they  are 
in  office,  it  is  because  they  can  be  ousted  only 
by  a  majority  of  two-thirds  of  the  legislature. 
If  they  can  only  be  removed  in  this  way,  how 
shall  we  "COMPROMISE"  them  out  of  office? 
And  if  we  can  remove  them  by  compromise 
now,  why  could  we  not  have  done  it  before 
your  great  act  was  passed?  If  there  was  any 
other  mode  of  removing  the  judges  than  those 
defined  in  the  constitution,  your  party  has 
been  right  and  mine  wrong.  If  mine  has  been 
right,  and  there  is  no  other  mode,  how  can  we 
"compromise,"  and  thereby  create  a  new  mode 
unknown  to  the  constitution?  I  should  con 
sider  this  kind  of  compromise  more  unconsti 
tutional  and  dangerous,  (if  any  thing  can  be 
more  so)  than  the  re- organizing  act.  If  you 
intend  this  much  by  your  compromise,  it  is  ev 
ident  that  we  cannot  agree  to  it  without  giving 
up  all  for  which  we  have  struggled. 

But  do  you  intend  only  to  re-corainission  the 
old  judges?  Why  should  this  be  done?  If 
they  are  in  office,  your  commissions  will  be 
void;  and  any  oath  administered  under  them, 
or  other  act  done,  of  no  effect  as  derived  from 
or  attached  to  them. 

They  cannot  accept  your  commissions.  They 
never  will  accept  them.  If  we  agree  with  you 
that  they  shall  receive  no  salary  until  they 
shall  accept  and  qualify,  do  we  not  thereby 
surrender  every  principle  in  controversy?  And 
have  you  not  gained  a  complete  triumph? 

The  question  is  at  last  resolved  into  one  sim 
ple  proposition.  Are  there  three,  or  only  two 
departments  instituted  by  the  constitution?  Is 
the  court  of  appeals  constitutional,  or  legisla 
tive?  To  compromise  such  a  question,  or  leave 
it  unsettled,  AT  THIS  TIME,  would  be  the  great 
est  calamity  that  could  afflict  Kentucky. 

England,  in  7G,  had  repealed  her  stamp  act, 
and  offered  to  repeal  her  duty  on  tea;  and  thus 
16 


proposed  a  compromise  with  her  former  colo 
nies.  They  rejected  the  oifer  with  indigna 
tion.  It  was  not  the  paltry  tax  of  which  they 
complained;  it  was,  that  England  did  not  pos 
sess  the  right  to  tax  America  whilst  unrepre 
sented.  If  they  had  compromised,  England 
might,  by  abusive  exercises  of  the  taxing  pow-. 
er,  have  subjected  them  to  abject  oppression. 
Direful  war,  with  all  its  horrors  and  devasta 
tion,  stared  them  in  the  face.  But,  holding  their 
lives  in  their  hands,  the  patriots  of  '76  rejected 
the  compromise,  and  appealed  to  the  only  um 
pire — the  god  of  battles. 

We  care  not  for  men:  we  contend  for  sacred 
principles,  as  dear  as  the  consecrated  princi 
ples  of  '76.  Like  England,  you  propose  to 
repeal  your  stamp  act,  but  you  will  not  sur 
render  the  right  of  your  "PARLIAMENT"  to 
rule  the  humble  judiciary  "in  all  cases  what 
soever."  Like  our  fathers  of  '76,  we  reject  your 
offer,  and  appeal  to  our  only  arbiter — the  PEO 
PLE. 

But  you  menace  violence.  You  hold  up  to 
our  view  all  the  horrors  of  gorgon- headed  an 
archy.  If  these  threats  can  alarm  us  into 
''compromise,"  we  do  not  deserve  the  good 
constitution  with  which  we  are  blessed;  aiid 
will  never  enjoy  its  benefits.  The  constitution 
is  strong  enough  to  resist  your  violence  and 
prevent  your  anarchy,  or  it  is  not  a  constitution 
worth  a  conflict. 

If  a  robber  break  into  the  treasury  and  rifle 
it,  will  you,  because  he  draws  his  dirk  and  re 
sists,  "compromise'  with  him,  by  suffering  him 
to  retain  the  stolen  money  and  go  abroad  un 
punished?  If  the  culprit  sentenced  to  die  for 
murder,  shall  defy  the  commonwealth  and  de 
clare  war  against  the  community,  would  soci 
ety,  to  avoid  bloodshed  or  a  little  civil  war, 
surrender  to  him  and  remit  the  sentence?  But 
such  is  your  compromise!  You  have  violently 
attempted  to  abolish  the  court  of  appeals,  and, 
resisting  the  people  at  the  polls,  you  denounce 
anarchy  and  war  unless  they  compromise  with 
you,  by  allowing  you  to  enjoy  your  triumph, 
and  riot  over  the  constitution  with  impunity! 
You  have  gone  too  far.  The  Rubicon  is  in 
deed  passed.  The  ground  of  compromise  is 
far  behind  you.  You  must  now  either  con 
quer  or  retreat. 

THE  TENURE  BY  WHICH  JUDGES 
HOLD  THEIR  OFFICES  MUST  BE  AS 
CERTAINED  AND  PERMANENTLY  SET 
TLED  BY  THE  PEOPLE. 

Surfer  me  to  offer  you  the  sentiments  of  Vir 
ginia  statesmen  and  patriots,  on  an  analogous 
subject.  You  will  find  them  very  forcible  and 
apposite. 

The  Virginia  judges  were  reduced  to  the  di 
lemma  of  submitting  to  an  unconstitutional 
act  of  their  legislature,  of  resisting,  or  of  re 
signing.  They  could  not  submit; :  they  [would 
not  resign;  they  resisted,  as  our  judges  have 
done.  Their  vindication  is  long  and  able.  T 
will  only  trouble  you  with  the  following  ex 
tract: 

"The  following  alternatives  presented  them 
selves  to  the  court,  cither  to  decide  those  ques 


122 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


tions,  or  resign  their  offices.  The  latter  would 
have  been  their  choice,  if  they  could  have 
considered  the  questions  as  affecting  their  indi 
vidual  interests  only;  but  viewing  them  as  re 
lating  to  their  office,  and  finding  themselves 
called  by  their  country  to  maintain  an  impor 
tant  post  as  one  of  the"  three  pillars  on  tvhich  the 
great  fabric  of  goveinment  was  erected,  THE* 

JUDGED  THAT  A  RESIGNATION  WOULD  SUBJECT  THEM 
TO  THE  REPROACH  OF  D2SERT1NG  THEIR  STATION 
AND  BETRAYING  THE  SACRED  INTERESTS  OF  SOCI 
ETY  ENTRUSTED  TO  THEM;  and  on  that  ground, 
found  themselves  compelled  to  decide,  how 
ever  their  delicacy  might  be  wounded,  or 
whatever  temporary  inconveniencies  might  en 
sue,  and  in  that  decision  to  declare,  that  the 
constitution  and  the  act  are  in  opposition  and 
cannot  ezist  together,  and  that  the  former  must 
control  the  operation  of  the  latter."  "To  ob 
viate  a  possible  objection,  that  the  court, 
while  they  are  maintaining  the  independence 
of  the  judiciary,  are  countenancing  encroach 
ments  of  that  branch  on  the  departments  of 
others,  and  assuming  a  right  to  control  the 
legislature,  it  may  be  observed,  that  when 
they  decide  between  an  act  of  the  people  and 
an  act  of  the  legislature,  they  are  witnin  the 
line  of  their  duty  declaring  what  the  law  is, 
and  not  making  a  new  law.  And  ever  dis 
posed  to  maintain  harmony  with  the  other 
members  of  the  government,  so  necessary  to 
promote  the  happiness  of  society,  the  court 
most  sincerely  wish  that  the  present  infraction 
of  the  constitution  may  be  remedied  by  the 
legislature  themselves,  and  therefore  all  fur 
ther  uneasiness  on  the  occasion  be  prevented. 
But  should  their  wishes  be  disappointed  by 
the  event,  they  see  no  other  alternative  for  a 
decision  between  the  legislature  and  judicia 
ry,  than  an  appeal  to  the  people,  whose  ser 
vants  both  are,  raid  for  whose  sakes  both  were 
created,  and  who  may  exercise  their  original 
and  supreme  power  whenever  they  think  prop 
er.  To  that  tribunal,  therefore,  the  court  in  that 
case  commit  themselves,  conscious  of  perfect 
integrity  in  theirintentions,  however  they  may 
have  been  mistaken  in  their  judgment." 

To  this  impressive  address,  the  following 
well  known  and  revered  names  are  subscribed, 
viz:  Bdmund  Pendleton,  George  Wythe,  John 
Blair,  Paul  Carrington,  Peter  Lyons,  Wm 
Fleming,  Henry  Tazewell,  Richard  Carey, 
James  Henry,  John  Tyler.  (Judges.) 

No  RESIGNATION  HERE. 

Such  was  the  spirit  of  an  American  judicia 
ry;  such  were  th«  sentiment's  of  American 
statesmen,  whose  wisdom  and  vhose  patriot 
ism  ivone  dare  question.  And  such,  1  trust, 
will  ever  be  the  cherished  spirit  and  applaud 
ed  sentiments  of  the  judges,  the  statesmen, 
aud  the  people  of  all  free  countries.  These  are 
the  principles  of  '7G.  They  are  the  principles 
for  defending  which,  you  have  branded  the 
judges  with  usurpation,  and  their  advocates 
with  federalism.  They  are  the  principles  of 
our  government — the  principles  of  liberty. 
'They  are  our  principles,  and  we  will  never 
-  them  to  force  or  to  "compromise." 

A  PLEBIAN. 


TO  THE  GOVERNOR  ELECT  OF  KEN 
TUCKY— No.  vn. 

"If  an  honest,  and  I  may  truly  affirm,  a  la 
borious  zeal  for  the  public  service,  has  given 
me  any  weight  in  your  esteem,  let  me  exhort 
and  conjure  you,  never  to  suffer  any  invasion 
of  your  political  constitution,  however  minute 
the  instance  may  appear,  to  pass  by  without  a 
determined,  persevering  resistance." 

JUNIUS. 

Liberty,  without  restraint,  would  be  anar 
chy.  Security,  without  the  guardianship  of 
fundamental  and  inviolable  laws,  would  be 
an  unexampled  anomaly.  It  would  be  a  prod 
igy,  which  never  yet  appeared  in  the  world, 
and  which  never  will  be  seen  until  man  is 
renovated,  and  restored  to  his  pristine  purity 
and  primeval  innocence.  As  long  as  frailty  ancl 
vice  belong  to  our  fallen  nature,  government 
will  be  indispensable  to  our  mutual  safety  and 
welfare.  Natural  freedom  is  unqualified  ty 
ranny.  We  are  bound  to  surrender  a  portion 
of  our  original  liberty,  to  secure  the  enjoyment 
oi  the  remainder.  If  we  wish  to  participate 
in  the  benefits  of  society  and  civilization,  we 
must,  as  the  only  price  of  the  enjoyment,  give 
as  much  as  we  exact.  We  must  surrender  our 
individual  wills  to  the  paramount  will  of  the 
community  of  which  we  are  constituent  parts. 
That  united  will,  to  be  just,  and  stable,  and 
authoritative,  must  be  rightful.  It  must  not 
be  arbitrary  and  capricious.  It  must  be  regu 
lated  by  elementary  principles — principles 
growing  out  of  the  nature  of  man  and  the  or 
ganization  of  society — principles  approved  bv 
impartial  reason,  and  tested  by  long  experi 
ence — principles  which  are  just,  because  they 
are  suitable,  and  eternal,  because  they  are 
just.  These  elements  of  government,  howev 
er  incorporated,  constitute  the  political  stam 
ina,  which,  when  established,  make  what  is 
called  the  constitution.  These  organic  laws 
of  the  body  politic  are  either  settled  by  com 
pact,  or  by  long  usage  and  general  acquies 
cence.  They  are  either  written  or  traditiona 
ry.  In  whatever  form  they  exist,  they  will  be 
respected  aiid  upheld,  by  all  who  know  the 
difference  between  regulated  and  unregulated 
power,  between  disciplined  and  undisciplined 
force,  between  reason  and  passion,  between  a 
cultivated  enclosure  and  a  dreary  wilderness 
of  power. 

In  despotic  governments,  the  despot's  will 
is  law;  in  republics,  the  people's  will  is  law. 
In  either  form  of  government,  the  law,  with 
out  constitutional  control,  would  be  arbitrary, 
and  the  subject  would  be  wholly  insecure  in 
his  life,  liberty  and  property,  tinder  an  ab 
solute  prince,  the  only  safeguard  of  individual 
right,  is  the  power  and  the  probable  success  of 
physical  resistance,  or  the  benignity  of  the 
prince.  No  written  constitution  defines  his 
powers,  or  guarantees  the  rights  of  others. 
No  organized  principles  of  checks  arid  balances 
control  his  authority  or  prevent  its  abuse. 
Every  one  is  t^very  moment  insecure. 

Equally  insecure  are  individual  rights,  in 
a  government  in  which  the  will  of  an.  ascend- 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


123 


ant  party  is  in  all  cases  the  supreme  law.  No 
govprnruent  can  be  free  or  stable,  unless  the 
principles  of  justice  and  morality  overrule  the 
passions  or  interests  of  factious  bodies.  A 
truly  free  government  is  one  in  which  justice 
predominate?  over  power,  and  right  over 
might,  No  government  is  free  or  equal  in 
which  power  is  justice,  .and  might  is  right,  al 
though  that  power  is  the  authority  of  num 
bers,  and  that  might  is  their  physical  force.  _ 

If  the  people  wish  to  be  secure,  and  to  enjoy 
liberty  without  the  alloy  of  anarchy,  they 
must  establish,  by  common  consent,  the  prin 
ciples  of  justice  and  universal  right,  and  so  or 
ganize  their  government  as  to  secure  these 
principles  from  violation.  How  to  do  this,  is 
the  great  desideratum  in  politics.  It  never 
was  done,  and  never  will  be,  without  a  written 
constitution,  which  shall  define  the  rights  of 
those  in  authority,  and  provide  the  means  of 
keeping  all  the  "departments  in  proper  equi 
poise.  Without  three  coequal  and  counteract 
ing  departments,  there  can  be  no  stability  in 
government,  and  no  permanence  of  right. 
Fewer  than  three  cannot  preserve  the  harmony 
of  justice.  And  when  they  are  properly  bal 
anced,  with  the  power  and  the  inclination  to 
co-operate  with,  or  counteract  each  other 
when  the  public  good  requires,  faction  lias  no 
terrors,  and  every  citizen  feels  secure.  In  this 
equilibrium  of  power  lies  the  value  of  a  con 
stitution;  and  it  is  the  ultimate  aim  of  all  po 
litical  experiment.  This  secret  was  never  re 
vealed  until  within  the  last  century;  and  the 
promised  laud  of  Columbus  was  the  theatre  of 
its  development. 

The  republics  of  ancient  times  were  turbu 
lent  factions,  and  generally  short-lived.  They 
were  aristocratic,  and  freqently  intolerably 
unjust.  This  was  because  there  was  no  third 
power,  to  balance  the  two  great  inherent  and 
rival  powers  of  society.  When  the  two  ele 
mentary  powers  are  left  to  combat  each  other, 
the  one'strives  to  subjugate  the  other,  and  in 
their  conflict  and  alternate  triumphs,  commo 
tion  is  produced,  and  private  right  trampled 
down.  But  introduce  the  third  power,  and 
harmony  pervades  the  whole  constitution 
Limitations  on  the  legislative  power  are  use 
less,  unless  ajudiciaiy  can  enforce  them. 

The  American  constitutions,  unlike  any 
which  preceded  them,  are  formal  and  solemn 
written  compacts  of  the  people  with  each  oth 
er.  They  contain  the  principles  of  justice  and 
equality,  regulated  and  adjusted  by  the  delib 
erate  and  enlightened  will  of  all  the  people — 
which  can  alone  be  changed  by  the  people, 
and  which  are  supreme  and  uncontrollable 
whilst  in  force.  The  constitution  of  Kentucky 
is  a  monument  of  liberty.  The  people  alone 
have  a  right  to  repair  its  dilapidations,  or  alter 
its  proportions.  The  power  of  the  department 
al  agents  of  the  people  is  not  only  preventive;  it 
is  conservative. 

To  secure,  this  beautiful  edifice  from  the  vi 
olence  of  faction  or  the  rashness  of  innovation, 
the  people  have  implanted  in  it  the  principles 
of  its  own  renovation,  and  of  its  own  conserva 
tion  or  destruction.  The  people  themselves 


have  not  the  political  or  moral  right,  to  alter  or 
abolish  their  constitution,  otherwise  than  ac 
cording  to  its  own  principles.  This  it  is,  that 
renders  the  fabric  durable  and  stable,  and  will 
render  it  venerable. 

If  the  majority  could  violate  or  alter  the  con 
stitution  how  and  when  they  please,  it  would 
be  unstable  and  worthless.  It  would  then  not 
be  a  constitution,  but  only  legislative  will.  If 
the  legislature  can  control  or  violate  it,  when 
ever  ignorance  or  interest  may  prompt  them  to 
do  so,  it  is  only  a  snare  for  the  unwary  and  the 
honest;  it  is  a  cobweb. 

The  legislature  are  not  the  people;  they  on 
ly  represent  the  people  in  the  faculty  of 
making  laws,  as  the  judiciary  does  in  that  of 
expounding  and  administering  laws.  The 
constitution  is  the  will  of  the  people;  an  act  of 
assembly  is  the  will  of  the  legislature.  And 
no  act  can  be  law,  unless  it  is  in  consonance 
with  the  constitution.  The  constitution  is  the 
authority  by  which  all  the  departments  are 
governed,  and  from  which  they  derive  all  their 
authority. 

This  constitution  establishes  justice  and 
guarantees  civil  liberty.  Its  power  is  alto 
gether  moral.  Its  efficiency  consists  in  the 
public  sentiment  of  its  inviolability.  The 
soul  which  animates  it  is  the  people's  rever 
ence.  Tho  cement  which  holds  its  parts  to 
gether  if,  the  people's  virtue  and  intelligence. 
The  citizen  should  hold  the  constitution  as  the 
Christian  does  the  decalogue,  sacred  and  invi 
olable.  It  is  worthy  of  his  most  sincere  hom 
age,  and  requires  his  most  resolute  and  perse 
vering  support.  Every  violation  will  encour 
age  recurrent  violations;  and  thus  its  value 
will  be  diminished,  and  its  principles  rendered 
inoperative.  As  long  as  the  people  and  their 
functionaries  venerate  the  constitution  in  all 
its  parts,  justice  is  secure  and  liberty  is  safe; 
the  poor  man  may  live  in  peace,  and  work 
with  the  buoyancy  of  hope  and  the  confidence 
of  security.  But  only  sanction  or  connive  at 
one  violation  of  the  constitution,  and  it  in 
spires  hope  and  confidence  no  longer.  While 
it  exists,  its  motto  is  "nolo  me  tangere.  (touch 
me  not.)  Like  virgin  purity,  once  sullied,  it 
loses  its  chaste  odor  and  its  charms,  and  in 
vites  its  own  prostitution.  Extinguish  only  one 
spark  of  the  vestal  fire  which  burns  on  its  al 
tar,  and  the  desecrated  flame  is  no  longer  holy; 
it  degenerates  into  the  common  clement,  and 
is  no  more  sacred  or  enduring.  Listen  to  the 
warning  of  "Junius,"  on  the  necessity  of 
guarding  the  fundamental  law  from  every  Vio 
lation,  however  minute  or  transient: 

"One  precedent  creates  another.  They  soon 
accumulate  and  constitute  law — \vhat  yester 
day  was  fact,  to-day  is  doctrine.  Examples 
are  supposed  to  justify  the  most  dangerous 
measures;  and  where  they  do  not  suit  exactly, 
the  defect  is  .supplied  by  analogy.  Be  assured 
that  the  laws  which  protect  us  in  our  civil 
rights,  grow  out  of  the  constitution,  and  they 
must  fall  or  flourish  with  it.  This  is  not  the 
cause  of  faction,  or  of  party,  or  of  any  individ 
ual,  but  the  common  interest  of  every  man." 

Excellent  sentiment!    It  should  be  engraven 


124 


TO  THE  GOVERNOR  ELECT  OP  KENTUCKY. 


on  the  heart  of  every  true  friend  of  justice  and 
right  government.  The  inviolability  of  our 
constitution  is  the  security  of  every  citizen. 
If  any  infraction  be  sanctioned  to  the  preju 
dice  of  one,  the  example  endangers  the  right  of 
all.  Let  not  the  strong  exult  in  their  imagina 
ry  security,  and  feel  indifferent  to  the  violation 
of  principles,  which  are  necessary  to  the  de 
fence  of  the  weak.  He  who  is  strong  to-day 
may  be  weak  to-morrow.  He  who  is  up  to 
day  may  be  down  to-morrow.  He  who  is  now 
in  a  dominant  majority,  may  soon  feel  the  ne 
cessity  of  a  refuge  to  the  constitution,  which 
he  has  impaired  so  much,  that  it  can  afford 
him  no  protection  against  the  injustice  of  an 
other  triumphant  majority.  No  prudent  man 
will  ever  be  provoked  by  passion,  or  stimu 
lated  by  momentary  interest,  to  prostrate  the 
barriers'  of  his  own  security.  Let  no  one  think 
that  any  violation  of  his  constitution,  xinder 
any  circumstances,  or  for  any  purpose,  is  suf- 
ferable.  If  one  violation  be  tolerated,  anoth 
er  is  justified  by  the  example;  usage  ripens  in 
to  law;  and  the  whole  constitution  is  supersed 
ed;  it  becomes  passive  and  exanimate. 

In  questions  of  private  right,  the  judiciary  is 
the  only,  and  from  necessity,  the  ultimate  ar 
biter.  If  the  court  in  the  last  resort  should 
err  on  a  constitutional  question,  the  decision 
is  valid  between  the  parties.  But  public  sen 
timent  may,  whilst  it  cannot  reverse  the  de 
cision,  reverse  the  principle.  There  may  be 
constitutional  questions  which  can  be  decided 
only  by  the  people;  and  their  only  mode  of 
deciding  them  is  at  the  polls.  Such  is  the 
great  subject  of  controversy  now  pending,  in 
relation  to  the  court  of  appeals.  No  judicial 
tribunal  can  decide  such  a  controversy.  It  is 
not  a  judicial  matter — it  is  political.  Wheth 
er  the  "court  of  appeals"  is  constitutional  or 
legal,  cannot  be  definitely  determined  by  "the 
court  of  appeals."  Whether  the  old  or  the 
new  court  is  "the  court  of  appeals,"  cannot  be 
effectually  settled  by  the  old  or  the  new 
judges.  Who  then,  must  decide  these  momen 
tous  and  anomalous  questions?  The  legisla 
ture?  Certainly  not  The  controversy  has 
grown  out  of  an  act  of  the  legislature.  There 
is  a  collision  between  the  legislative  and  judi 
cial  departments.  Shall  the^legislature  decide 
its  own  cause — adjudicate  on  its  own  acts? 
Attempt  to  prostrate  another  and  equipollent 
department,  and  then  gravely  sanctify  its  own 
encroachments? 

The  people  who  made  the  constitution,  and 
for  whom  it  was  made,  are  the  only  umpires. 
And  when  they  act  on  such  a  subject,  they 
act  in  their  original  popular  character,  and 
not  in  a  delegated,  legislative  capacity — they 
act  as  sovereigns,  not  as  legislators;  and  the 
act  is  popular,  not  legislative.  If  their  decis 
ion  be  not  final,  their  only  resource  is  to  sub 
mit,  or  resume  the  exercise  of  their  inherent 
sovereignty.  When  a  constitutional  question 
is  referred't.o  the  electors  at  the  polls,  their  de 
cision  can  be  announced  by  those  only  whom 
they  there  elected.  If  senators  who  had  beer 
elected  before  will  not  acquiesce  in  such  a  de 
cision,  their  pertinacity  can  havt  no  legiti 


mate  effect  in  frustrating  the  public  will. — 
?hat  will  being  the  last  resort,  and  being  as- 
.ertained  by  the  only  means  by  which  it  is  as- 
lertainable,  and  communicated  by  ther  imme 
diate  representatives,  in  the  only  mode  by 
vhich  it  may  be  communicable,  must  be  su- 
)reme  in  its  authority  and  inevitable  in  its  re 
sults.  Who  are  deputed,  in  such  a  case  to  ex 
press  the  people's  will?  The  senators  whom 
they  had  not  the  power  then  to  elect,  or  the  re- 
)resentatives  whom  they  did  elect  for  the  sole 
mrpose  of  representing  and  declaring  their 
will?  If  an  unconstitutional  act  were  valid 
mtil  regularly  and  formally  repealed,  it 
would  be  conceded,  that  before  it  should  be 
disregarded,  the  whole  legislative  department 
uust  concur  in  repealing  it.  But  we  are  not 
.eft  in  this  dilemma.  Every  legislative  act  re 
pugnant  to  the  fundamental  law  being  void, 
whenever  the  people  pronounce  it  repugnant, 
it  is  considered  a  nonentity,  and  its  repeal  is 
not  necessary.  And  after  such  a  decision  by 
the  people,  bold  must  be  the  man,  and  desper 
ate  the  faction,  that  would  dare  to  enforce  the 
mconstitutional  enactment.  The  man  and 
the  party  that  would  thus  presumptuously  and 
perversely  act,  would  deserve  to  be  called  en 
emies  to  the  peace  and  liberty  of  their  coun 
try,  and  to  be  considered  traitors  to  its  sacred 
cause. 

You  say  that  the  people  have  not  decided 
the  "judge  question/'  What  right  have  you  to 
say  so?  How  do  you  know  that  they  have  not 
decided  it?  Did  not  their  own  representatives 
solemnly  declare,  that  their  constituents  had 
decided  that  the  re-organizing  act  is  unconsti 
tutional?  And  who  else  can  know  as  well  as 
they  should  know?  How  else  will  you  ever  be 
informed  on  this  subject? 

Yes,  sir,  the  people  have  decided  the  great 
controversy,  and  you  know  it.  You  in  sub 
stance  admit  it  in  your  message,  and  employ 
low  cunning  and  despicable  artifice  to  elude 
that  decision.  You  certainly  presume  too 
much  on  the  ignorance  and  gullibility  of  the 
people.  They  are  intelligent,  sir,  although  in 
electing  you,  they  have  encouraged  you  to  per 
severe  in  the  belief  that  they  are  not.  Their 
right  to  settle  the  construction  of  their  consti 
tution  (in  the  only  way  in  which  they  can  do 
it,  by  voting  at  the  polls,)  they  will  not  suffer 
you  to  deny  or  "compromise." 

Your  political  sins  cannot  be  expiated  by 
artful  or  deceitful  professions;  nor  can  the 
wound  which  you  have  inflicted  on  the  consti 
tution,  be  healed  by  the  balm  of  "compromise." 
The  people  have  displayed  a  "determined 
and  persevering  resistance"  to  your  violation 
of  their  constitution,  and  in  that  resistance 
they  will  triumph.  The  rational  and  patriot 
ic  temper  lately  manifested  by  them,  is  encour 
aging  to  the  friends  of  order,  and  justice,  and 
morality.  It  is  ominous  of  a  long  and  bright, 
career  yet  to  open  for  Kentucky,  of  prosperity, 
happiness,  and  just  renown.  It  is  a  satisfac 
tory  and  consoling  proof,  that  the  constitution 
is  strong,  because  it  shows  that  that  popular 
sentiment  of  reverence  for  its  principles,  which 
alone  fortifies  them  and  gives  them  activity, 


> 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


125 


is  unshaken  by  the  political  illuminati,  who 
have  lately  been  endeavoring  to  undermine 
the  republican's  faith,  by  exhibiting  to  his 
passions  "a  Circean  liberty"— and  to  invert 
the  moralist's  creed,  by  tempting  him  with  the 
sensual  allurements  of  an  epicurean  philoso- 

To  insure  the  longevity  of  our  excellent  con 
stitution,  popular  virtue  and  popular  intelli 
gence  are  indispensable.  These  are  the  bases 
of  the  whole  political  structure  of  a  free  gov 
ernment.  Sap  these  broad  foundations,  and 
the  superstructure  must  fall.  "With  the  purest 
rirtue  and  highest  intelligence  attainable  by 
degenerate  man,  he  cannot  live  in  society  se 
curely,  without  the  protection  of  a  good  con 
stitution — and  no  constitution  can  be  called 
good,  or  can  accomplish  its  ends,  unless  the 
people  revere  and  defend  it  and  every  part  of 
it,  as  the  Palladium  of  their  rights — the  cita 
del  of  their  safety.  When  they  manifest  this 
disposition,  they  show  themselves  worthy  of 
the  boon  which  constitutional  liberty  holds  out 
to  her  votaries. 

Our  constitution  is  emphatically  the  ark  of 
our  political  salvation.  The  principles  which 
it  preserves  are  to  us  civilly,  what  spiritually 
Sinai's  law  was  to  the  ancient  Jews.  All  our 
virtue,  all  our  wisdom  can  never  enable  us  to 
live  as  freemen  without  their  supreme  guardi 
anship. 

The  statesman  who  would  propose  to  live 
without  a  constitution,  or  under  one  which 
should  be  subject  to  the  control  or  execlusive 
construction  of  the  law  making  power,  would 
be  obnoxious  to  the  ridicule  and  derision  which 
Plotinus  incurred,  by  proposing  to  Gallienus, 
to  establish  a  city  of  philosophers  to  be  called 
Platonopolis,  where  the  citizens  might  live 
free,  under  the  guidance  of  reason  and  philos 
ophy,  without  the  restraints  of  government. 

Sir,  to  be  free,  we  must  have  a  free  constitu 
tion,  and  that  constitution  must  be  supreme. 
It  is  the  people's  recorded  will,  and  their  ser 
vants  cannot  resist  or  change  it.  If  a  legisla 
tive  act  violate  it,  a  legislative  act  is  not  neces 
sary  to  restore  it.  The  people  can  check  the 
usurpation,  and  wipe  off  the  pollution  without 
legislative  aid.  And  they  do  both,  effectual 
ly,  whenever  they  decide  at  the  polls  that  the 
act  of  their  agents  is  in  conflict  with  the  para 
mount  law. 

"A  coastitution  is  a  thing  antecedent  to  gov 
ernment,  and  a  government  is  only  the  crea 
ture  of  a  constitution.  It  is  not  the  act  of  the 
government,  but  of  the  people  constituting  the 
government.  It  is  the  body  of  elements  to 
which  you  can  refer,  and  quote  article  by  arti 
cle,  and  which  contains  the  principles  on 
which  the  government  shall  be  established, 
the  manner  in  which  it  shall  be  organized,  the 
power  it  shall  have,  <fec. 

'•RIGHTS  OF  MAN.' 
"The  constitution  of  the  state  ought  to  be 
iixed;  and  since  that  was  first  established  by 
the  nation,  which  afterwards  trusi -d  certain 
persons  with  the  legislative  powers,  the  funda 
mental  laws  are  excepted  from  ihi.;  commis 
sion.  In  short,  these  legislators  derive  their 


power  from  the  constitution.  How  then  can 
they  change  it,  without  destroying  the  founda 
tion  of  their  authority.  -'VATTEL." 

"The  omnipotence  of  Parliament"  is  Euro 
pean — it  is  English.  It  is  not  American;  it  is 
an  exotic,  which  will  not  take  root  or  nourish 
in  the  soil  of  liberty.  Against  this  transatlan 
tic  principle  our  fathers  fought,  and  conquer 
ing,  they  have  extirpated  it.  The  great  prin 
ciple  of  America  is  the  appropriate  distribu 
tion  of  the  functions  of  government,  among 
three  coequal  departments.  The  reciprocal 
checks  of  each  department  preserve  an  equi 
librium,  which  prevents  either  from  encroach 
ment  or  consolidation.  For  the  want  of  this 
principle,  the  people  of  Europe  have  been 
subject  to  unremitted  oppression  and  frequent 
revolutions.  For  want  of  it,  all  the  republics 
of  ancient  and  modern  Europe  have  been  fac 
tious  and  turbulent,  and  have  sunk  into  anar 
chy  and  eventual  despotism. 

A  judicial  department,  co-ordinate  and  co 
eval  with  the  others,  and  to  a  proper  extent  in 
dependent  of  them,  has  never  oeen  known  ex 
cept  in  these  United  States.  It  does  not  even 
yet  exist  in  England.  THERE,  there  is  no  writ 
ten  constitution.  Prescription,  usage,  prece 
dent,  constitute  the  English  constitution. — 
It  is  invisible,  and  exists  only  in  the  memory 
and  the  heart  of  England.  There,  an  act  of 
parliament  is  the  supreme  law — and  hence  the 
judge  scarcely  ever  ventures  to-  say  that  any 
act  of  parliament  is  void. 

But  here  the  judiciary  is  interposed  as  an 
intermediate  check  on  the  legislature.  The 
judges  are  bound,  "ex-officio,"  to  declare  "the 
law" — and  the  people  in  the  constitution  have 
announced,  that  their  will  therein  expressed  is 
the  supreme  law,  and  that  every  thing  in  op 
position  thereto  is  null  and  void.  In  contro 
versies  between  individuals  in  courts  of  jus 
tice,  the  constitution  must  govern.  It  was  for 
this  end  that  it  was  made,  and  for  this  end  that 
judges  were  commissioned.  The  jxidges  are  the 
agents  of  the  people,  not  of  the  legislature,  and 
therefore  must  enforce  the  constitution,  which 
is  the  people's  law,  in  opposition  to  an  unau 
thorized  act  of  their  agents.  Your  re-onraniz- 


ing  act  admits  that  this  is  the  duty  of  the 
judges,  when  it  provides  that,  in  pronouncing 
an  act  unconstitutional,  they  shall  be  unani 
mous.  To  pronounce  unconstitutional  acts 
void,  has  been  the  practice  of  the  federal  and 
state  judiciaries  ever  since  the  organization  of 
the  respective  governments.  A  fearless,  im 
partial,  and  upright  exercise  of  this  important 
function  is  necessary  to  the  liberty  of  the  citi 
zen.  A  constitution  limiting  the  sphere  of  leg 
islative  power,  cannot  be  maintained  and  en 
forced  without  it.  And  such  a  texture  and 
temperament  of  rnind  as  will  enable  judges  to 
act  in  this  respect  properly,  should  be  cher 
ished  and  encouraged. 

If  English  judges  had  possessed  and  exer 
cised  this  salutary  power,  Sidney  and  Rus 
sell  would  have  fived  to  enjoy  that  freedom 
for  defending  which  they  fell  as  martyrs.  If 
this  conservative  engine  of  free  government. 
ihad  been  employed  in  Revolutionary  France, 


126 


TO  THE  GOVERNOR  ELECT  OP  KENTUCKY. 


her  guillotine  would  have  fallen  only  on  the 
guilty,  and  her  soil  would  not  have  been 
washed  with  the  blood  of  her  innocent  and 
most  worthy  citizens.  Had  its  value  been 
known,  Aristides  would  not  have  been  exiled, 
nor  the  Gracchi  murdered.  But  the  politicians 
of  ancient,  as  well  as  modern  times,  reason 
ed  as  many  of  your  party  now  do.  They 
identified  the  legislature  and  the  people — they 
considered  legislative  acts  as  paramount  law, 
and  viewed  the  interposition  of  judicial  checks 
as  inconsistent  with  the  genius  of  government. 
They  reasoned  delusively,  as  their  melancholy 
history  proves.  And  their  history  would  in 
time  be  our  history,  if  the  same  error  should 
prevail  among  us.  There  is  no  liberty  where 
there  is  not  an  independent  judiciary."  There 
is  no  security — no  living  constitution  where 
that  judiciary  has  not  the  power  to  rescue  the 
humble  or  persecuted  citizen  from  the  oppres 
sion  of  an  ambitious  and  rapacious  faction, 
whether  in  the  legislature  or  elsewhere.  "With 
out  such  a  judiciary,  vested  with  such  a  pow 
er,  in  vain  would  the  constitution  declare — 
that  the  habeas  corpus  shall  not  be  suspend 
ed — that  justice  shall  be  administered  with 
out  sale,  denial,  or  delay — that  no  man  shall 
be  punished  without  a  fair  and  impartial  trial 
by  a  jury  of  his  peers — that  private  property 
shall  not  be  taken  for  public  uses  without  just 
compensation — that  the  obligation  of  contracts 
shall  not  be  impaired — that  ex  post  facto  laws 
shall  not  bo  passed — that  there  shall  be  no  at 
tainder  or  corruption  of  blood — that  there  shall 
be  no  titles  of  nobility — that  all  men  are  free 
and  equal — that  there  shall  bo  no  established 
religion — that  no  man  shall  suffer  for  his  faith 
or  be  bound  to  support  any  sect — that  the  lib 
erty  of  The  press  and  of  conscience  shall  be  se 
cure.  These  elements  of  freedom  would  all 
be  abstract  and  speculative,  if  there  were  no 
judiciary  to  arrest  the  legislature  in  their  at 
tempts  to  violate  them — and  you  and  your 
"cabal"  might  then  goon,  "conquering  and  to 
conquer." 

"It  is  urged  that  the  power  which  can  de 
clare  the  acts  of  another  void,  must  necessari 
ly  be  superior  to  the  one  whose  acts  may  be 
declared  void.  But  there  is  no  position  which 
depends  on  clearer  principles,  than  that  every 
act  of  a  delegated  authority,  contrary  to  the 
tenor  of  the  commission  under  which  it  is  ex 
ercised,  is  void.  No  legislative  act,  therefore, 
contrary  to  the  constitution,  can  be  valid.  To 
deny  this  would  be  to  affirm  that  the  deputy  is 
greater  than  the  principal;  that  the  servant  is 
above  his  master — that  the  representatives  of 
the  people  ore  superior  to  the  people  them 
selves.  It  is  far  more  rational  to  suppose  that 
the  courts  vrcrc  designed  to  be  an  intermedi 
ate  body,  between  the  people  and  the  legisla 
ture,  in  order,  among  other  things,  to  keep  the 
latter  within  the  limits  assigned  to  their  au 
thority.  The  interpretation  of  the  laws  is  the 
proper  and  particular  province  of  the  courts. 
The  constitution  i.-;  in  fact,  and  must  be  regard 
ed  by  the  judge:;,  as  a  fundamental  law.  It 
therefore  belongs  to  i-hern  to  ascertain  its  mean 
ing,  as  well  as  that  of  any  act  of  the  legisla 


ture.  If  there  be  an  irreconcilable  variance 
between  the  two,  that  which  has  the  superior 
obligation  and  validity,  ought  of  course  to  be 
preferred,  or  in  other  words,  the  constitution 
ought  to  be  preferred  to  the  statute;  the  inten 
tion  of  the  people  to  the  intention  of  their 
agents. 

Nor  does  this  conclusion,  by  any  means, 
suppose  a  superiority  of  the  judicial  to  the  le 
gislative  power  It  only  supposes  that  the 
power  of  the  people  is  superior  to  both,  and 
that  where  the  will  of  the  legislature,  declared 
in  its  statutes,  stands  in  opposition  to  that  of 
the  people  declared  in  the  constitution,  the 
judges  ought  to  be  governed  by  the  latter  rath 
er  than  the  former.  They  ought  to  regulate 
their  decisions  by  the  fundamental  laAV,  rather 
than  those  which  are  not  fundamental.  It  can 
be  of  no  weight  to  say  that  the  courts,  on  the 
pretence  of  a  repugnancy,  may  substitute  their 
own  pleasure  for  the  constitutional  intentions 
of  the  legislature.  This  might  as  well  happen 
in  the  case  of  two  contradictory  statutes,  or  it 
might  happen  in  every  adjudication  upon  any 
single  statute.  The  courts  must  declare  the 
sense  of  the  law.  The  observation,  if  it  proved 
any  thing,  would  prove  that  there  ought  to  be 
no  coxirts  distinct  from  the  legislative  body," 
<fec.  PUBLIUS. 

Such  were  the  sentiments  of  the  Washing- 
tons,  the  Hamilton*,  the  Madisons,  the  Jeffer- 
sons,  and  the  Patrick  Henrys  of  the  re  volution. 
How  different  they  are  from  the  spurious  doc 
trines  at  your  "Jefferson,"  and  your  ''Patrick 
Henry/'  who  denominate  judges  "Kings" 
for  declaring  a  legislative  act  void.  All  are 
"Kings"  or  "Tories"  who  oppose  you  or  your 
relief  legislatures. 

By  an  independent  judiciary',  we  mean  a  ju 
diciary  independent  of  the  will  of  less  tlian 
two-thirds  of  the  legislature,  Without  such 
an  independence,  you  might  torture,  and  im 
prison,  and  murder  with  impunity.  No 
judge  dependent  on  the  whim  of  a  bare  majori 
ty,  would  dare  to  resist  the  unconstitutional 
acts  of  that  majority. 

How  would  you  like  to  apply  the  doctrine  of 
legislative  supremacy  to  Congress,  and  of 
tame  subserviency  and  absolute  dependence, 
to  the  supreme  court  of  the  Union?  Would 
not  state  rights  be  in  danger?  Might  they  not 
aoon  be  engulpheu  in  the  vortex  of  unhallowed 
power?  And  would  you  apply  to  the  supreme 
court  your  principles" of  unanimity  on  all  con 
stitutional  questions?  What  then  might  be 
come  of  state  rights  and  the  federal  constitu 
tion?  Might  not  ambitious  men  pass  acts 
which  would  eventuate  in  dissolution  or  con 
solidation. 

The  qualified  independence  of  the  judiciary  is 
the  most  important  feature  in  the  constitution. 
Without  it,  the  constitution  would  be  an  inert 
mass,  destitute  of  life,  or  forjn,  or  comeliness. 
It  would  be  a  chaos  of  power.  But  with  this 
feature  in  it,  it  lives  and  reigns — it  is  beauti 
ful  and  beneficent.  It  is  this  which  gives  it 
harmony  and  solidity,  and  endears  it  to  there- 
publican  statesman,  and  will  endear  it  to  the 
poor  ten  ant  of  the  humble  cot.  It  is  this  which 


TO  THE  GOVBRKOR  ELECl1  OF 


12? 


will  cheer  the  innocent  and  console  the  perse 
cuted—which  gives  confidence  to  our  industry 
and  security  to  our  hearths. 

It  is  this" strong  arm  of  justice  which  you 
and  your  party  have  been  striving  to  paralyse. 

It  is  this  great  anchor  of  the  constitution 
that  you  are  now  endeavoring  to  barter  by 
compromise. 

The  people  love  their  constitution  and  will 
never,  i  hope,  give  up,  or  "compromise,"  one 
word  or  syllable  or  letter  of  it.  They  will 
guard  it  from  all  violation,  whether  the  attack 
be  open  or  insidious;  whether  it  be  in  the  form 
of  re-organization,  or  of  "compromise." 

Although  they  have  pronounced  the  re-or 
ganizing  act  unconstitutional,  and  although 
you  ought  to  know  it,  as  you  have  been  so  anx 
ious  to  ascertain  their  "will,"  you  still  resist 
the  people  and  spurn  their  constitution. 
have  very  little  hope  of  convincing  you  of  your 
duty  or  your  interest.  If  you  were  not  con 
vinced  last  August,  you  are  an  incorrigible 
sceptic.  In  my  next  number,  however,  1  shall 
attempt  a  short  argument  on  the  re-organizing 
act;  and  I  shall  expect  to  shew  you,  if  you  are 
not  blind,  that  it  is  "OBVIOUSLY  and  PAL 
PABLY"  unconstitutional. 

PLEBIAN. 


TO    THE  GOVERNOR   ELECT   OF  KEN 
TUCKY— No.  VIIT. 

"The  necessity  of  reciprocal  checks  in  th< 
exercise  of  political  power,  by  dividing  anc 
distributing  it  in  different  depositories,  anc7 
constituting  each  the  guardian  of  the  public 
weal,  against  invasions  of  others,  has  been 
evinced  by  experience,  ancient  and  modern/" 
WASHINGTON'S  FAREWELL  ADDRESS. 

The  lessons  of  experience  and  the  maxims 
of  wisdom,  have  been  wantonly  disregardec 
by  your  party,  in  "the  re-organizing  act."— 
Flushed  with  victory  and  instigated  by  ambi 
tion,  they  looked  only  to  their  own  selfish 
ends.  The  act  was  passed  in  a  whirlwind  o: 
power.  The  "night  scene"  was  riotous  anc 
humiliating.  You,  and  Barry  and  "Patrick 
Henry "  and  other  kindred  spirits,  were 
placed  in  the  midst  of  your  party  in  th 
house  of  representatives,  to  exhort  them  tc 
courage.  You  were  seen  plying  them  mos 
earnestly.  Many  of  them  seemed  to  be  shaker 
to  the  centre  of  their  souls,  by  the  appeal? 
which  had  been  made  and  were  then  making 
to  them,  by  the  friends  of  the  constitution 
They  faultered;  many  hesitated;  some,  unable 
to  stifle  conscience,  abandoned  you.  They 
had  been  addressed  in  caucus  by  the  federa 
Attorney  and  your  "would-be"  chief  justice 
They  had  there  taken  the  oath  of  fealty  anc 
given  their  adhesion.  But  as  the  fatal  momen 
approached,  when  the  constitution  was  eithe: 
to  triumph  over  your  "cabal,"  or  to  fall  bj 
your  scalping-knives  and  tomahawks,  the  tini 
id  and  conscientious  turned  pale,  and  felt  hor 
rorat  the  deed.  To  strengthen  the  weak  and 


Console  the  contrite,  you  stood  by  them  in  the 
lour  of  trial;  you  and  your  minions  placed 
^ourselves,  like  sentinels,  on  the  floor,  to  watch 
he  suspected  and  prevent  their  desertion. 
Yes,  sir,  incredible  and  disgraceful  as  is  the 
7act,  it  is  believed  to  be  but  too  true,  that  the 
governor  of  Kentucky,  some  of  those  parasites 
who  were  to  be  judges  of  the  legislative  su- 
Dreme  court,  he  who  was  to  be  reporter  of  their 
escripts,  and  other  expectants,  were  earnestly 
employed  on  the  floor  of  the  representative 
all,  among  the  members,  in  midnight  session, 
3y  your  countenance  and  conduct^  consoling 
and  stimulating  those  whose  judgments  had 
oeeii  convinced,  and  whose  consciences  were 
awakened  by  the  reiterated  warnings  of  the 
constitutional  advocates. 

The  scene  resembled  a  camp  night-meeting, 
in  confusion  and  clamor;  but  it  lacked  its  holy 
impulse.  Heaven  approves  the  one;  Satan 
himself,  it  is  thought,  presided  over  the  orgies 
of  the  other.  An  honest  member,  who  had 
gone  with  you  as  far  as  he  could,  and  who  felt 
it  to  be  his  duty  to  follow  the  dictates  of  his 
conscience  and  judgment,  was  hissed  on  the 
floor,  for  declaring,  when  his  name  was  called, 
that  he  felt  bound  to  support  the  constitution, 
and  that  his  conscience  would  not  allow  him  to 
violate  it;  as  he  had  become  convinced  he 
should  do  by  voting  for  your  bill.  This  hon 
orable  man  had  made  a  speech,  and  the  best 
(it  has  been  said)  which  was  made  in  favor  of 
the  act;  but  afterwards  he  was  convinced  of  his 
error,  and  had  the  magnanimity  and  firmness 
to  desert  you.  This  he;  did  not  wish  to  do.  He 
postponed  it  until  the  last  moment  when  it  was 
possible.  He  then  paused,  and  told  you  pub 
licly,  that  he  could  go  with  you  no  farther; 
that  there,  he  and  you  must  part;  he  with  his 
constitution  in  his  band,  you  with  yours  under 
your  feet.  How  much  more  noble  was  his  con 
duct  than  yours!  Obedient  to  instructions, 
most  of  the  re-organizers  were  in  the  habit  of 
going  out  whenever  a  speaker  on  the  other  side 
rose  to  address  the  house.  COL.  MORGAN,  ot' 
Nicholas,  whoso  seat  was  next  to  Mr.  ROBERT 
SON'S,  was  in  the  act  of  going  out  when  Mr. 
R.  was  rising  to  make  his  speech  against  the 
act — but  at  Mr.  R.'s  request  he  remained  in  his 
seat,  as  an  act  of  personal  courtesy — observing, 
at  the  time,  that  argument,  to  him,  was  use 
less.  That  was  on  the  forenoon  of  the  day  on 
which  the  final  vote  was  taken.  He  listened, 
and  was  convinced.  This  was  the  man  who 
was  hissed  by  his  party  for  having  a  con 
science.  If  others,  whp  felt  as  he  did,  had 
possessed  the  energy  and  self  confidence 
necessary  for  an  escape  from  the  fear  of  your 
vengeance  and  the  trammels  of  party,  what 
calamities  would  they  have  averted  from  our 
devoted  state!  But  the  fate  of  vour  bill  had 
been  sealed  in  caucus,  and  all  efforts  to  defeat 
it,  or  even  retard  its  progress,  were  unavailing. 
It  was  hastened  with  a  precipitation  unbecom 
ing  so  grave  an  occasion.  The  previous  ques 
tion  was  moved,  lest  the  friends  of  the  consti 
tution  should  be  able  to  break  your  caucus- 
spell,  by  the  native  force  of  argument.  You 
.all  became  disconcerted  and  alarmed.  You 


TO  THE  GOTEENOR  BLECT  OF  KENTUCKY. 


\vere  afraid  to  hear  more.  And  it  has  been  pub 
lished,  that  you  prompted  the  call  for  the  pre 
vious  question!  What  say  you — guilty  or  not 
guilty?  If  you  will  not  answer,  I  will  answer 
for  you — guilty  beyond  a  doubt. 

The  member  who  made  the  call  did  not  un 
derstand  its  objects  or  its  effects;  and  as  soon 
as  he  was  notified  of  them,  he  promptly  with 
drew  his  motion!  You  encouraged  your  party 
to  oppose  an  adjournment,  andto/orcethe  bil] 
through  the  house,  contrary  to  the  usual  forms 
of  legislation.  You  were  afraid  that  remon 
strances  from  the  people  would  come  in  on  the 
next  day.  They  did  come,  in  tones  of  thun 
der.  But,  lest  a  reconsideration  ra  ight  be  call 
ed  on  the  nest  day,  you  had  signed  "the  long 
bill"  before  the  house  was,  next  morning,  or 
ganized.  How  was  this  done?  Was  the  bill 
examined  and  enrolled  before  it  passed?  And 
did  you  approve  and  sign  it  without  reading 
it?  "Why  this  haste?  Why  this  management? 
Why  this  shuffling  and  intriguing?  You  were 
about  to  consign  to  the  tomb,  the  constitution 
of  your  country.  Your  triumph  was  like  that 
of  an  Attila,  a  Ghengiskan,  or  a  Tamerlane. 
Your  party  resembled  a  conquering  army. 
The  sardonic  grins  and  bacchanalian  revels, 
which  graced  your  triumph,  showed  that  your 
rictroy  was  Vandalic,  and  your  spoils  piratical 
The  constitution  which  you  supposed  you 
had  laid  low,  has  risen  with  power.  Its  resur 
rection  portends  your  doom.  It  is  redeemed 
and  regenerated  by  the  voice  of  the  people. 
That  same  voice  will  splute  your  ears  in  ac 
cents  of  thunder.  The  mangled  constitution 
stands  up  in  judgment  against  you.  1  now 
hold  it  before  you.  Look  at  it.  View  its  wounds 
— if  you  are  still  an  infidel,  "feel  the  side  which 
•ijou  have  pierced,"  and  then  acknowledge  that 
it  was  slain,  but  lives  again — was  buried,  but 
has  risen,  to  bless  and  to  save. 

The  constitution  either  ordains  the  existence 
and  defines  the  duration  of  the  court  of  ap 
peals,  or  it  is  silent  and  inoperative  in  relation 
to  that  tribunal.  The  supreme  court  either  de 
pends  on  the  will  of  the  people  in  convention, 
or  on  the  will  of  their  agents  in  the  legisla 
ture.  If  it  be  of  constitutional  origin  the  leg 
islature  cannot  abolish  it.  If  it  "be  the  off 
spring  of  legislation,  your  act  of  assembly  is 
valid.  The  conclusion  thus  drawn  from  these 
hypothetical  premises  is  logical  and  inevita 
ble.  And  consequently  the  judges  are  either 
in  or  out  of  office,  as  the  fact  shall  be  ascer 
tained  to  be,  whether  the  "court"  originates 
from  the  constitution,  or  from  an  act  of  assem 
bly.  For  that  which  is  purely  legislative,  is 
under  legislative  control — and  that  which  is 
generated  by  the  constitution,  is  above  legis 
lative  power. 

The  court  of  appeals  is  the  head  of  the  ju 
diciary  department.  The  governor  is  the  head 
of  the  executive  department.  The  constitution 
declares  that  "the  powers  of  the  government  of 
the  state  of  Kentucky  SHALL  BE  divided  into 
TUUEK  DISTINCT  departments,  and  each  of  them 
confided  to  a  separate  body  of  magistracy,  to- 
wit;  those  which  are  legislative  to  one;  those 


which  are  executive  to  another;   and   those 

Which    AEE  JUDICIARY    TO    ANOTHER."       It    also 

declares,  that  "the  legislative  power  of  this 
commonwealth  SHALL  BE  vested  in  two  distinct 
branches"-"the  supreme  executive  power  of  the 
commonwealth  SHALL  BE  vested  in  a  chief  mag 
istrate" — the  judicial  power  of  this  common 
wealth,  both  as  to  matters  of  law  and  equity, 
SHALL  BE  vested  in  ONE  supreme  court,  WHICH 

SHALL   BE    STYLED   THE    COURT  OF  APPEALS 

— and  in  such  inferior  courts  as  the  GENERAL 
ASSEMBLY  may,  from  time  to  time  erectnand  es 
tablish."  The  language  which  has  been  quo 
ted  is  plain.  It  is  susceptible  of  only  one  ra 
tional  construction.  There  can  be  no  diversi 
ty — no  unintentional  misrepresentation. 

The  functions  of  government  are  distributed 
among  three  departments  of  agency.  Each 
department  is  designated  by  the  constitution 
— its  province  denned — its  duties  devolved. 
Each  class  of  agency  is  ordained,  or  in  other 
words,  required  to  exist,  by  the  constitution. 
It  declares  that  there  shall  be  three  distinct 
departments.  Then  there  must  be  three.  It 
declares  that  the  legislative  power  shall  be 
vested,"  &c. — "that  the"  executive  power  shall 
be  vested,"  <fcc. — "that  the  judicial  power  shall 
be  vested  in  a  supreme  court,"  &c.  The  lan 
guage  is  similar — the  import  and  effect  must 
be  the  same.  This  is  undeniable. 

Does  the  constitution  ordain  or  establish  the 
legislature?  Then  it  ordains  or  establishes 
the  executive.  If  it  ordains  or  establishes  the 
legislative  and  executive,  by  a  parity  of  rea 
son,  it  ordains  and  establishes  the  judiciary. 
The  men  who  shall  fill  either  of  those  depart 
ments  are  not  designated  by  the  constitution. 
They  are  otherwise  appointed.  The  depart 
ments,  the  offices,  exist  without  the  incum 
bents;  the  former  are  created  by  the  constitu 
tion;  the  latter  by  election  or  appointment,  un 
der  and  according  to  the  constitution.  The 
legislative  department  existed,  before  the  mem 
bers  who  have  filled  it  were  elected — the  ex 
ecutive  existed  before  a  governor  was  elected — 
The  supreme  court,  as  the  head  of  the  judicia 
ry,  existed  before  judges  were  commission 
ed.  The  departments  were  all  established  by 
the  constitution.  They  were  co-eval  with  it, 
and  are  all  co»etaneous  and  co-existent  Tiiis, 
too,  is  indisputable. 

The  office  or  station  of  a  legislator,  and  the 
member  of  the  legislature,  are  two  distinct 
hings — so  is  that  of  the  executive  and  the 
overnor  who  fills  it;  and  so  is  that  of  the  ju 
diciary  and  the  judge  who  is  appointed  to  ad 
minister  the  laws.  If  there  are  no  members 
of  the  legislature,  there  is  still  a  legislative 
department.  If  the  governor  dies,  the  office 
ives.  If  the  judges  die  or  resign,  or  shall  be 
removed,  the  court  of  appeals  survives  that  by 
which  ii  s  bench  has  been  vacated.  The  legis- 
ature  may  remove  the  incumbents  of  either 
department  from  office,  but  they  cannot  abol- 
sh  either  of  the  departments — and  they  have 
as  much  power  to  abolish  one  as  another,  and 
10  more.  Any  attempt  to  destroy  either  would 

unconstitutional.    The  reason,  and  the  oiv 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


129 


ly  reason,  why  they  are  all  three  ordained  by 
the  constitution,  is  that  the  people  assembled 
in  convention,  were  unwilling  to  confide  the 
organization  of  their  political  machine  to  their* 
legislative  department;  they  knew  that  three 
departments,  with  the  power  and  the  will  to 
check  and  countercheck  each  other,  and  there 
by  produce  harmony  and  prevent  violence, 
were  indispensable  to  the  enjoyment  of  liber 
ty  and  security.  And  they  therefore  construct 
ed  and  balanced  against  each  other,  three 
organs  of  government;  and  have  interdicted 
the  destruction  of  either  bv  any  power  inferior 
to  that  which  gave  them  bein^. 

The  constitution  organizes  the  government, 
and  hence  is  called  the  organic  law.  It  con 
structs  the  entire  machinery  of  government, 
and  leaves  to  the  people  and  legislature  the 
discretion  amd  power  of  giving  it  impulse  and 
supplying  the  means  for  continuing  the  con 
cord  of  its  movements,  and  the  unison  and  ef 
fectiveness  of  its  operations.  It  can.  never 
move  until  the  people  give  the  impetus.  Each 
department  must  be  put  into  operation,  by  the 
act  of  the  people,  either  at  the  polls  or  in  the 
legislature.  Although  the  executive  depart 
ment  is  created  by  the  constitution,  there  can 
be  no  governor  without  an  election  by  the  peo 
ple.  The  legislative  department  exists  in  the 
constitution,  but  until  an  election  by  the  peo 
ple,  there  can  be  no  legislature.  The  court  of 
appeals  is  created  by  the  constitution,  but 
there  can  be  no  judges  of  that  court,  until  the 
people,  through  their  legislature  and  executive, 
shall  designate  the  number  of  judges  who 
shall  fill  the  court,  and  shall  give  them  com 
missions. 

But  when  a  governor  is  elected,  he  is  in 
office  under  the  constitution,  arid  his  office  can 
not  be  abolished  by  the  legislature,  nor  him 
self  removed  except  by  impeachment.  So  when 
a  member  of  the  legislature  is  regularly  elect 
ed,  he  holds  his  seat  under  the  constitution. 
His  station  or  office  cannot  bo  abolished,  dur 
ing  his  term,  by  the  legislatuie.  He  may  be 
expelled,  but  his  vacant  seat  will  be  again  fill 
ed — it  was  only  vacated  by  the  expulsion  of 
its  incumbent,  not  annihilated.  So  too,  when 
ever  judges  are  commissioned  for  the  supreme 
court,  they  are  in  office  according  to  the  con 
stitution.  The  court  is  ordained  by  the  con 
stitution  and  cannot  be  abrogated,  and  the 
judges  can  be  removed  from  the  court  only  by 
impeachment  or  address.  Are  there  any  other 
modes  known  in  the  constitution? 

The  number  of  members  who  shall  at  any 
particular  time  constitute  the  legislature,  is 
not  fixed  by  the  constitution.  The  legisla 
ture,  from  time  to  time,  may  regulate  the^ium- 
ber  of  its  members,  so  that  it  be  not  less  than 
the  minimum  nor  more  than  the  maximum 
prescribed  in  the  constitution.  When  the 
legislature  declares,  by  an  act  of  their  own, 
that  their  body  shall  consist  of  a  certain  num 
ber,  (for  example,  75  in  one  branch,  and  25 
in  the  other.)  and  when  the  people  have  elect 
ed  that  number  of  representatives,  the  power 
which  was  necessary  to  fill  the  legislature 
has  been,  for  the  occasion,  exhausted,  and  no 
17 


repeal  of  the  act  regulating  the  number  can 
affect  the  right  of  those  who  had  been  elected 
under  it,  to  their  seats  and  their  privileges. 

When  the  legislature  have  designated  the 
number  of  judges  who  shall  occupy  the  su 
preme  court,  and  the  governor  and  senate 
shall  have  appointed  men  to  fill  the  offices,  the 
appointments  cannot  be  revoked  by  the  gov 
ernor;  nor  can  the  offices  be  abolished  while 
they  are  filled.  The  constitution  devolves  on 
the  legislature  the  duty  of  giving  facility  and 
full  effect  to  the  court  of  appeals — but  not  the 
power  of  its  creation  or  abolition ;  this  the  peo 
ple  have  wisely  reserved  to  themselves.  A 
repeal  of  any  act  or  acts  of  Assembly  regulat 
ing  the  court  of  appeals,  can  have  no  more  ef 
fect  on  the  existence  of  the  court,  or  the  ten 
ure  of  its  offices,  than  the  repeal  of  an  act  reg 
ulating  the  election  of  members,  would  have 
on  the  existence  of  the  legislature,  or  on  the 
seats  of  the  members  elected  in  pursuance  of 
the  act.  In  each  case  the  legislature  would 
have  the  right  to  repeal  its  own  acts,  but  in 
neither  would  the  repeal  operate  retroactively, 
so  as  to  affect  private  or  official  rights  acquired 
under  the  repealed  act  or  acts;  these  are  vested 
and  secured  by  the  constitution. 

The  constitution  requires  that  there  shall  be 
a  legislature;  that  there  shall  be  a  governor; 
that  there  shall  be  a  court  of  appeals.  Must 
they  then  not  all  exist  as  long  as  the  constitu 
tion  shall  exist?  Can  either  be  abolished  by 
the  other  two?  Can  the  legislature  abolish  the 
executive?  Can  they  abolish  the  court  of  ap 
peals?  If  they  can  destrey  the  one,  they 
have  the  same  power  to  abrogate  the  other. 

The  legislature  or  the  executive  may,  by 
perverseness,  produce  an  interregnum.  By 
refusing  to  pass  laws,  or  to  execute  them 
when  enacted,  the  legislature  or  governor  may 
suspend  the  operation  of  the  constitution,  but 
they  cannot  destroy  its  existence.  They  may, 
jointly  or  separately,  prevent  the  appointment 
of  judges  for  the  supreme  court;  but  they  can 
not  abolish  the  supreme  court. 

As  the  judges,  when  appointed,  are  entitled 
to  their  offices  during  good  behavior,  "and  the 
continuance  of  their  court,"  and  as  the  court 
of  appeals  cannot  be  abolished  by  act  of  as 
sembly,  it  follows  irresistibly,  that  whilst  the 
constitution  shall  continue  to  exist,  the  offices 
cannot  be  taken  from  the  judges;  nor  can  the 
judges  be  removed  from  the  offices,  except  for 
misbehavior,  and  then  onlv  by  impeachment 
or  address  by  two-thirds  oi  both  branches  of 
the  general  assembly.  So  says  the  constitu 
tion. 

Is  it  the  constitution,  or  is  it  an  act  of  as 
sembly,  which  requires  that  there  shall  be  "one 
supreme  court,  to  be  called  the  court  of  ap 
peals  r"  Is  it  the  constitution,  or  an  act  of  as 
sembly,  which  declares  that  there  shall  be  a 
legislature  and  an  executive?  Is  it  the  consti 
tution,  or  an  act  of  assembly,  which  devolves 
on  these  three  depositories  of  power  their  re 
spective  portions  and  ki  nds  of  authority?  Even 
you,  sir,  will  admit — you  are  bound  to  admit 
— that  these  are  all  fundamental  principles, 
which  constitute  the  very  essence,  and  life, 


130 


TO  THE  GOVERNOR  ELECT  OP  KENTUCKY. 


and  organization   of  our  republican  govern 
ment. 

The  constitution  establishes  three  distinct 
departments.  What  are  they?  Is  the  legisla 
ture  one?  Is  the  executive  two?  What  is  the 
third?  Is  it  not  the  judiciary?  And  how  can 
it  be  pretended,  that  one  of  the  three  is  de 
rived  less  from  the  constitution  than  the  oth 
ers?  If  there  be  one  which  does  not  depend 
for  its  existence  on  the  constitution  alone,  and 
which  may  be  suspended  or  destroyed  by  the 
others,  then  it  is  a  sophism  to  say  that  there 
are  three  departments;  there  would  be  only 
two  constitutional  departments;  the  third 
would  be  legislative. 

The  legislature  cannot  change  the  "frame 
work"  of  the  government.  They  derive  their 
authority  and  exi&tence  from  the  constitution. 
They  cannot  derange  the  organization  of  the 
departments.  They  can  neither  create  nor  de 
stroy  them.  These  are  all  three  as  permanent 
as  the  constitution  itself;  otherwise,  they  are 
not  established  by  it,  aud  are  not  the  depart 
ments  which  it  ordains  and  creates. 

Can  the  legislature  abolish  their  own  depart 
ment?  Can  they  abolish  the  executive?  To 
propound  such  questions  seriously  to  a  man  of 
common  sense,  would  insult  him.  It  would 
argue  the  suspicion  that  he  was  either  a  fool 
or  a  knave.  What  then  must  be  thought,  and 
may  be  said  of  him  who  insists  that  the  legis- 
tature  can  abolish  the  court  of  appeals,  the 
very  head  and  soul  of  the  judiciary,  which  is 
declared  to  be  the  third  department?  Such  a 
man  could  not  maintain  his  title  to  common 
sense,  nor  to  common  honesty,  until  he  could 
prove  that  three  departments  meant  two — that 
the  judiciary  is  the  legislative  and  vice  versa 
Why  does  the  constitution  create  three  de 
partments?  Is  it  that  each  may  be  so  far  in 
dependent  of  the  others  as  to  check  their  ab- 
berations,  and  yet  so  arranged  relatively  as  to 
preserve  their  mutual  rights,  and  the  harmony 
of  all.  The  legislature  and  governor  may  con 
cur  in  passing  unconstitutional  acts;  for  in 
stance,  acts  establishing  a  religion;  for  destroy 
ing  jury  trials;  for  muzzling  the  press;  for  dis 
franchising  citizens  who  are  not  freeholders 
These  usurpations  will  be  harmless,  if  the  ju 
diciary  be  honest  and  faithful.  The  acts  of  as 
sembly  can  only  be  enforced  by  the  courts.  It 
is  therefore  necessary  that  they  should  be  s 
far  independent  of  the  legislature,  as  not  to 
be  afraid  to  resist  their  encroachments  on  the 
people  and  the  people's  constitution.  For  this 
and  this  alone,  the  people  established  a  thirc 
department. 

The  history  of  the  world  proved  the  nccessi 
ty  of  this  third  department.  Liberty  demand 
«d  it.  And  if  the  people  in  convention  hac 
not  felt  the  necessity  of  establishing  it,  and 
rendering  it  as  stable  as  either  of  the  others,  o 
as  the  constitution,  they  would  have  left  to  thi 
legislature  the  power  to  establish  a  suprerm 
court  or  not,  as  they  should  deem  expedient 
and  the  power  to  abolish  one  when  created,  as 
in  the  case  of  inferior  courts. 

But  they  have  said  that  "the  judicial  powe 
nhall  be  Tested  in  one  supreme  court,  and  in 


inch  inferior  courts  as  the  legislature  may, 
rora  time  to  time,  erect  and  establish."  They 
ave  thus  confided  to  the  legislature  the  cre 
ation  of  whatever  inferior  courts  their  wisdom 
and  experience  may  point  out  as  proper. 
They  may  erect  circuit  courts,  district  courts, 
chancery  courts,  quarter  session  courts,  or  any 
rther  subordinate  courts.  They  may  substi- 
ute  one  system  of  inferior  courts  for  another, 
without  control  or  limitation.  But  there  shall 
>e  one  supreme  court  called  the  court  of  ap- 
jeals,  with  the  power  and  will  to  revise,  and 
correct,  and  control  the  legislative  and  inferior 
courts.  This  shall  be,  whether  the  legislature 
approve  it  or  not. 

If  the  convention  had  intended  that  the 
court  of  appeals  should  be  subject  to  legisla- 
ive  control  in  every  respect,  they  would  have 
left  the  legislature  as  free  in  relation  to  that, 
as  they  have  left  them  in  relation  to  the  infe 
rior  courts.  But  they  intended  that  there 
should  be  one  court  not  dependent  on  a  major 
ity.  The  legislature  established  circuit  courts; 
the  constitution  established  the  supreme 
court.  The  constitution  requires  that  there 
shall  be  a  court  of  appeals — it  does  not  require 
ircuit  courts.  The  one  inust^exist;  the  other 
may  or  may  not.  The  reason  why  one  must, 
and  the  other  may  exist,  is,  that  the  constitu 
tion  ordains  the  one,  and  therefore  it  cannot 
be  abolished,  and  the  legislature  creates  the 
other,  and  therefore  can  abolish  it. 

Allow  me  to  present  to  you  the  sentiments 
of  Virginia  on  this  subject.  I  will  do  so  by 
giving  you  the  opinions  of  Judge  Tucker, 
which  were  the  opinions  of  the  judges,  law 
yers,  legislators  and  people  of  ius  proud  and 
enlightened  state.  They  are  as  follows: 

"These  departments,  as  I  have  before  ob 
served,  our  constitution  declares  shall  be  for 
ever  separate  and  distinct.  To  be  so,  they 
must  be  independent  of  one  another,  so 
that  neither  can  control  or  annihilate  the  oth 
er.  The  independence  of  the  judiciary  results 
from  the  tenure  of  their  office,  which  the  con 
stitution  declares  shall  be  during  good  beha 
vior.  The  offices  which  they  fill  must,  there 
fore,  in  their  nature,  be  permanent  as  the  con 
stitution  itself,  and  not  liable  to  be  discontin 
ued  or  annihilated  by  another  branch  of  the 
government.  Hence,  the  constitution  has  pro 
vided,  that  the  judiciary  department  should  be 
so  arranged,  as  not  to  be  subject  to  legislative 
control.  The  court  of  appeals,  court  of  chan 
cery  and  general  court,  are  tribunals  expressly 
required  by  it.  These  courts  can  neither  be  an 
nihilated  nor  discontinued  by  any  legislative 
act;  nor  can  the  judges  of  them  be  removed 
from  their  offices  for  any  cause  except  a  breach 
of  their  good  behavior. 

"But  if  the  legislature  might  at  any  time 
discontinue  or  annihilate  either  of  these  courts, 
it  is  plain  that  their  tenure  of  office  might  bo 
changed;  since  a  judge  without  any  breach 
of  good  behavior,  might  in  effect  be  removed 
from  office,  by  annihilating  or  discontinuing 
the  office  itself. 

"The  judiciary  can  never  be  independent  so 
long  as  the  existence  of  the  office  depends  up- 


TO  THE  GOVERNOR  ELECT  OF  KENTUOKT. 


131 


on  the  will  of  the  ordinary  legislature,  and 
not  upon  a  constitutional  foundation.  Hence 
arises  a  most  important  distinction  between 
constitutional  and  legislative  courts.  The 
judges  of  the  former  hold  an  office  co-existent 
with  the  government  itself,  and  which  they 
can  only  forfeit  by  a  breach  of  good  behavior. 
The  judgas  of  the  latter,  although  their  com 
missions  should  import  upon  the  face  of  them, 
to  be  during  good  behavior,  may  be  at  any  time 
discontinued  from  their  office  by  abolishing 
the  courts.  In  other  words,  constitutional 
judges  may  be  an  independent  branch  of  the 
government;  legislative  judges  must  ever  be 
dependent  on  that  body,  at  whose  will  their 
offices  exist. 

"If  the  principles  of  our  government  have 
established  the  judiciary  as  a  barrier  against 
the  possible  usurpation  or  abuse  of  power  in 
the  other  departments,  how  easily  may  that 
principle  be  evaded,  by  converting  our  courts 
into  legislative,  instead  of  constitutional  tri 
bunals?" 

Such  are  the  sentiments  of  the  most  enlight 
ened  jurists  and  republican  statesmen;  such  are 
Virginia  doctrines,  and  such  are  American 
principles.  To  multiply  arguments  on  this 
subject  wauld  be  useless.  The  principle  for 
which  I  contend  is  almost  self-evident.  He  that 
doubts  might  as  well,  with  Hume,  doubt  the 
existence  of  a  God;  or  with  Berkley,  deny  the 
existence  of  matter.  Like  them,  before  he  can 
doubt,  he  must  distrust  the  elements  of  all 
reasoning,  intuitive  sentiments  of  his  mind, 
the  evidence  of  his  five  senses.  The  constitu 
tion  is  so  plain,  its  objects  so  manifest,  that  it 
would  be  difficult,  if  not  impossible,  to  eluci 
date  tkis  great  principle  by  argument.  I 
have  only  attempted  a  very  crude  and  hasty 
outline.  I  shall  add  but  little  to  it,  lest  by 
multiplying  words  I  should  darken  counsel. 

If  you  had  intended  only  to  add  four  judges 
to  the  court,  so  much  of  your  act  as  was  neces 
sary  for  that  purpose,  although  inexpedient, 
would  have  been  constitutional.  But  this  was 
not  its  object.  You  designed  by  it  to  remove 
the  "old  judges."  Your  party  could  not 
agree  during  the  pendency  of  the  bill,  on  any 
precise  construction  of  it.  Some  admitted 
that  it  could  not  have  the  effect  of  removing 
the  judges;  others  insisted  that  it  would  "re 
organize"  the  court,  and  thereby  expel  from  it 
those  who  then  filled  it.  The  senator  who  in 
troduced  it  in  the  senate  conceded  that  it 
would  not  remove  the  "old  judges,"  but  de 
clared  that  by  withdrawing  their  salary  and 
placing  over  them  four  others  to  control  them, 
they  would  be  compelled  to  retire.  After  the 
legislature  adjourned,  your  party  had  not 
agreed  on  what  construction  they  should  give 
the  act.  Seeing  that  the  court  of  appeals 
could  not  be  abolished,  many  of  them  argued 
that  the  court  was  only  "re-organized,"  and 
that  by  this  magical  process,  the  judges  were 
reduced  to  the  stations  of  private  citizens. 
Even  the  act  itself  does  not  purport  to  be  an 
abolition  of  the  court.  On  its  face  it  only  re 
peals  certain  acts  of  assembly  regulating  the 
courts,  and  all  acts  allowing  salary.  This  is 


a  tacit  admission  by  yourselves,  that  the 
court  could  not  be  abolished. 

But  finding  that  the  constitution  provides 
that  the  judges  shall  hold  their  offices  during 
good  behavior,  "and  the  continuance  of  their 
court,"  you  were  compelled  either  to  admit 
that  they  were  still  in  office,  or  that  their  court 
had  been  abolished.  And  then  you  were 
driven  to  a  dreadful  alternative.  In  this  ex 
tremity,  you  chose  to  contend  that  the  court 
was  abolished.  Yes,  sir,  in  your  own  mes 
sage  you  have  taken  that  bold  and  alarming 
ground.  The  following  jia  your  language: — 
"The  majority  now  deemed  it  necessary  to  re 
sort  to  their  constitutional  power  of  abolishing 
the  court,  and  establishing  another  composed 
of  other  men.  That  they  had  this  power  they 
could  not  doubt,  because  the  constitution  had 
not  brought  any  such  court  into  existence,  but 
the  first  legislature  of  Kentucky  had  estab 
lished  it,  because  the  power  of  changing,  and 
even  re-organizing  it,  had  been  once  before  ex 
ercised  by  the  legislature.  Because  the  su 
preme  court  of  the  United  States,  as  avowed 
by  the  judges  themselves,  was  created  by 
congress,  and  because  the  ablest  statesman  in 
the  latter  body  had  declared  that  the  supreme 
court  was  as  much  the  creature  of  legislative 
power,  as  the  inferior  courts."  Thus  you  ar 
gue  before  the  face  of  the  world,  and  in  the 
very  teeth  of  irrefragable  testimony,  to  convict 
your  argument  of  falsehood,  and  yourself  of 
wanton  misrepresentation.  Your  main  posi 
tion  is  indefensible,  and  you  know  it.  Your 
reasons  are  all  perversions  of  the  truth,  and 
you  cannot  deny  it. 

What,  sir,  did  you  abolish  the  court  of  ap 
peals?  Did  your  re-organizing  act  dare  to  in 
timate  such  a  monstrous  import?  Suppose  it 
had  said  in  plain  English,  "the  court  of  ap 
peals  is  hereby  abolished,"  would  not  all 
America  have  been  astounded?  If  you  can 
abolish  the  court  for  one  moment,  can  you  not 
abolish  it  forever?  And  where  then  will  be 
the  third  department?  Where,  and  what 
then  will  be  your  constitution?  Your  legis 
lature  will  be  omnipotent;  your  courts  will  bo 
their  servile  tools  and  the  instruments  of  their 
ambition. 

You  may  change  your  courts  and  your  judges 
every  year,  and  give  to  the  judicial  office  a  le 
gislative  instead  of  a  constitutional  tenure. 
Then,  sir,  in  the  language  of  Mr.  Jefferson, 
would  "all  the  powers  of  government,  legisla 
tive,  executive  and  judiciary,  result  to  the  leg 
islative  body."  And  he  warns  us  that  "the 
concentrating  these  in  the  same  hands,  is  pre 
cisely  the  definition  of  despotic  government." 
He  tells  us  also,  that  "it  will  be  no  alleviation, 
that  these  powers  shall  be  exercised  by  a  plu 
rality  of  hands,  and  not  by  a  single  one.  Ov  e 
hundred  and  seventy-three  despots  would 
surely  be  as  oppressive  as  one.  Let  those 
who  doubt  it  turn  their  eyes  on  the  republic  of 
Venice.  As  little  will  it  avail  us  that  they 
are  chosen  by  ourselves.  An  elective  despot 
ism  is  not  the  government  we  fought  for,  but 
one  which  should  not  only  be  founded  on  free 
principles,  but  in  which  the  powers  of  govern- 


132 


TO  THE  GOVERNOR  ELECT  OF 


ment  should  be  so  divided  and  balanced 
among  several  bodies  of  magistracy,  as  that 
no  one  could  transcend  their  legal  limits  with 
out  being  effectually  checked  and  restrained 
by  the  others." 

Mr.  Madison  admonishes  us  that  "the  accu 
mulation  of  all  powers,  legislative,  executive 
and  judiciary,  in  the  same  hands,  whether  of 
one,  a  few,  or  many,  and  whether  hereditary, 
self-appointed  or  elective,  may  justly  be  pro 
nounced  the  very  definition  of  tyranny."  He 
notifies  us  also,  that  "the  legislative  depart 
ment  is  every  where  extending  the  sphere  of 
its  activity,  and  drawing  all  power  into  its  im 
petuous  vortex." 

In  the  celebrated  letters  of  "Publius,"  we 
find  the  following  political  lesson:  "The  com 
plete  independence  of  the  courts  of  justice  is 
peculiarly  essential  in  a  limited  constitution. 
By  a  limited  constitution,  I  mean  one  which 
contains  specified  exceptions  to  the  legislative 
authority;  such,  for  instance,  as  that  it  shall 
pass  no  bill  of  attainder,  no  ex  post  facto  laws, 
and  the  like.  Limitations  of  this  kind  can  be 
preserved  in  practice  no  other  way  than 
through  the  medium  of  the  courts  of  justice, 
whose  duty  it  must  be  to  declare  all  acts  con 
trary  to  the  manifest  tenor  of  the  constitution 
void..  Without  this,  all  the  reservations  of 
particular  rights  or  privileges  would  amount 
to  nothing." 

Now  you  see  some  of  the  reasons  why  the 
convention  established  three  departments,  and 
why  they  declared  that  "there  should  be  a 
supreme  court,"  &c.  And  yet,  sir,  you  boldly 
declare  that  this  court  has  been  abolished  by 
act  of  assembly!  The  simple  fact  that  this 
court  is  established  as  a  check  on  the  majority 
of  the  legislature,  would,  of  itself,  unanswera 
bly  prove,  that  it  is  not  responsible  to  or  de 
pendent  on  that  majority.  You  say,  in  de 
fence  of  your  act,  that  the  legislature  have 
heretofore  set  us  precedents.  I  deny  it,  and 
challenge  you  for  the  semblance  of  proof.  You 
know  that  no  act  of  assembly  ever  turned  a 
judge  of  the  supreme  court  out  of  office. 

You  say  that  the  supremo  court  of  the  Union 
has  acknowledged  its  establishmeht  by  act  of 
congress.  Do  you  believe  this?  Do  you  not 
know  that  in  the  late  case  of  Osborne  vs.  the 
United  States,  the  supreme  court  decided  that 
"the  constitution  establishes  the  supreme 
court,  and  establishes  its  jurisdiction." 

You  say,  that  congress  has  removed  from  of 
fice  federal  judges,  by  ordinary  act  of  legisla 
tion.  True;  but  what  judges?  Were  they 
judges  of  tho  supreme  court,  established  by 
the  constitution,  or  were  they  judges  of  inferi 
or  courts,  created  by  act  of  congress?  You 
are  not  go  stupid  as  not  to  perceive  the  dis 
tinction  between  the  two  cases,  nor  KO  ignorant 
as  not  to  know  that  it  was  these  inferior  courts 
which  congress  abolished.  Who  ever  attempt 
ed  to  abolish  the  supreme  court?  The  man 
who  should  ever  propose  to  do  it  would  be  dis 
graced.  Mr.  Jefferson,  whose  private  letter 
your  party  published,  and  grossly  perverted, 
expressly  declares  therein,  that  judges  of  the  , 


supreme   court  can  only  be  removed  by  im 
peachment. 

You  say  that  the  ablest  statesmen  in  con 
gress  declared  that  the  supreme  court  was  as 
much  the  creature  of  legislative  power  as  'infe 
rior  courts.  Who  were  they?  Giles  was  (I 
believe)  the  only  man  who  ventured  to  utter 
such  an  absurdity.  The  federal  party  resist 
ed  the  right  to  abolish  inferior  courts,  by  as 
suming  an  analogy  between  them  and  the  su 
preme  court.  The  argument  was  imposing, 
and  the  republican  party  combatted  it,  by  ad 
mitting  that  judges  of  the  supreme  court 
could  not  be  legislated  out  of  office,  nor  their 
court  abolished,  because  it,  (like  ours,  and  by 
the  same  language)  was  ordained  by  the  con 
stitution;  but  at  the  same  time  insisting  that 
there  was  no  analogy  between  the  inferior  and 
supreme  courts.  They  said  that  the  supreme 
court,  being  established  by  the  constitution, 
could  not  be  abolished  by  congress;  but  that 
ihe  inferior  courts,  being  created  by  congress, 
could  be  repealed.  All  this  you  know;  and 
yet  you  publish  to  the  world  in  your  message, 
that  congress  has  exercised  the  same  power 
which  your  party  has  •ettempted  to  exert,  and 
that  the  ablest  statesmen  have  contended  that 
congress  can  abolish  the  supreme  court! 

You  say  that  the  constitution  did  not  bring 
the  court  of  appeals  into  existence,  but  that 
this  was  done  by  the  first  legislature  of  the 
stale.  Does  the  act  of  the  legislature  create  the 
court?  Does  it  not  acknowledge  its  anterior 
existence?  Do  not  its  provisions  pre-suppose 
its  constitutional  creation?  What  legislative 
act  established  the  court  of  appeals  under  the 
constitution  of  '99?  This  constitution  recog 
nizes  and  confirms  in  office  the  former  judges 
of  that  court.  And  by  what  legislative  leger 
demain  can  they  be  removed,  without  be 
ing  convicted  by  two-thirds,  of  misbehavior? 
The  constitution  did  not  bring  YOU  into  be 
ing  as  governor,  but  it  brought  your  offic'c  into 
being. 

But  lastly,  to  cap  the  climax  of  your  blun 
ders  and  mistakes,  you  assert  that  the  majoritv 
abolished  the  court  and  established  another 
composed  of  other  men.  Here  you  admit  that 
it  was  not  the  court,  but  the  men  who  were 
abolished.  You  confound  the  court  with  the 
judges  of  the  court.  The  majority  established 
another  court,  composed  of  other  men!  that  is, 
the  judges  constitute  the  court,  and  by  re- 
moving'them  the  court  is  abolished,  and  by 
establishing  another  court  they  are  removed. 

In  this  precious  confession,  you  either  be 
tray  your  inexcusable  ignorance,  or  show  the 
cloven  foot  of  "re-organization."  You  have 
surrendered  the  question,  sir.  The  court  is 
not  abolished,  and  consequently  the  judges 
arc  now  in  office.  And  so  say  the  people. 

"The  power  of  king,  lords  and  commons  is 
not  an  arbitrary  power.  They , ire  the  trustees, 
not  the  owners  of  the  estate.  The  fee  simple 
is  in  us."  This  is  the  opinion  of  Junius;  and 
[  hold  it  to  be  orthodox,  the  opinion  of  Wil- 
Lis  Alston  to  the  contrary  notwithstanding-. 
When  the  people  who  know  who  this  Willis 
Aliton  is,  and  how  you  extorted  his  puerile 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


133 


and  fulsome  letter,  they  will  know  how  to  ap 
preciate  his  statements.  And  when  they 
learn  that  he  is  almost  the  only  man  in  the 
union,  out  of  Kentucky,  who  holds  those  wild 
opinions;  when  they  hear  of  the  innumerable 
letters  from  other,  and  wiser,  and  better  men, 
contradicting  his  assertions,  and  expressing 
the  opposite  opinion,  they  will  know  how  to 
estimate  your  folly  and  your  motives  for  pub 
lishing  his  rodomontade.  Mr.  Alston's  puny 
assaults  will  not  shake  our  constitution,  nor 
change  our  opinions.  The  one  is  stable;  the 
others  are  derived  from  higher  sources  than 
Alston's  ipse  dixit.  We  derive  them  from 
God,  from  Washington,  from  Madison,  from 
Jefferson,  from  our  fathers  of  the  revolution, 
from  our  experience  and  our  constitution. 

Were  I  a  Lycurgus,  I  would  swear  the  peo 
ple  by  their  religion,  their  household  gods  and 
the  graves  of  their  fathers,  never  to  violate 
one  iletter  of  their  constitution.  I  would  en- 
join"on  them  as  a  sacred  duty,  to  treat  as  their 
enemy  every  man  who  would  attempt  the  in 
vasion  of  its  principles.  Our  fathers  ven 
tured  their  lives  for  the  privilege  of  making  it, 
and  we  would  be  degenerate  and  apostate 
sons  if  we  would  not  offer  up  ours  in  its  defence. 
If  we  suffer  its  degradation,  we  are  unworthy 
of  its  blessings;  unworthy  of  the  patriots  who 
gave  it  to  us  as  our  richest  inheritance,  and. 
unworthy  ot  the  millions  now  living,  and  the 
generations  yet  unborn,  whose  prayers  are  as 
cending,  and  will,  ages  to  come,  ascend  to 
heaven,  invoking  the  smiles  of  Providence  on 
the  cause  of  constitutional  liberty  throughout 
the  world.  A  PLEBIAN. 


TO  THE  GOVERNOR,  ELECT  OF  KEN 
TUCKY—  No.  ix. 

"In  wisdom,  'steadiness  and  judgment,  the 
people  have  greatly  the  advantage  of  PRINCES. 
For  this  reason,  the  voice  of  the  people  is  com 
pared  to  the  voice  of  God." 

Whatever  you  may  say,  or  whatever  you 
may  think  of  the  people's  constitution,  you 
are"only  one  of  their  servants,  and  should  sub 
mit  to  their  superior  judgment,  and  obey  their 
voice.  The  governor  who  shall  contumacious 
ly  defy  the  people's  deliberate  will,  and  arro 
gate  the  right  to  control  it,  would,  if  ho  could, 
be  a  tyrant. 

The  people  who  made  the  constitution,  and 
for  whom  alone  it  was  made,  ought  certainly 
to  be  presumed  the  best  judges  of  the  ends  for 
which  it  was  designed.  They  ought  to  know, 
whether  by  that  constitution,  three  depart 
ments  of  government  were  established  or  not. 
They  certainly  do  know  whether  each  depart 
ment  was  instituted  as  a  check  on  the  others, 
or  whether  two  of  them  were  created  only  to 
overrule  and  subjugate  the  third.  And,  sir, 
they  do  know,  and  it  is  their  interest  and  duty 
to  'know,  whether  the  third  department  is 
theirs,  or  the  creature  and  property  of  their 
governor  and  legislature.  Yes,  sir,  they  know 


better  than  you,  or  little  Willis  Alston,  wheth 
er  their  court  of  appeals  is  the  sturdy  off 
spring  of  their  will  in  convention,  or  the  rick 
ety  bantling  of  executive  and  legislative  pro 
creation. 

You  have  endeavored  to  adopt  this  court  as 
your  own,  and  to  subject  it  to  your  tutelage 
and  dominion.  But  the  people  have  detected 
you  in  the  stealth.  They  have  caught  you 
Jllagranti  delicto,  and  after  a  patient  and  'im 
partial  trial,  they  have  passed  sentence  of  con 
demnation  ^>n  you  and  your  accomplices  in  the 
illicit  deed. 

They  say  that  the  court  of  appeals  is,  and 
shall  continue  to  be,  under  their  paternal  care, 
and  that  you  shall  have  no  control  over  the 
court,  and  no  other  control  over  the  judges  of 
the  court  than  what  they  have  given  vou  in 
the  constitution.  If  you  are  not  satisfied  with 
what  is  thus  given,  you  must  wait  until  the 
people  revoke  their  letter  of  attorney,  and  by 
a  new  or  amended  grant,  confer  on  you  more 
power. 

If  you  have  no  respect  for  the  patriarchal 
counsels  of  Washington;  if  you  will  not  yield 
to  the  concurrent  opinions  of  Jefferson,  of  Mad 
ison,  of  Hamilton,  of  Henry,  of  Mason,  of  Jack 
son,  of  Nicholas,  and  the  host  of  patriots  and 
statesmen  who  achieved  our  independence, 
and  consolidated  our  liberty,  and  the  blended 
effulgence  of  whose  names  fills  up  the  "milky- 
way"  of  our  political  hemisphere;  if  you  re 
gard  not  the  sentiments  of  other  states;  if  you 
will  not  listen  to  your  Shelby,  your  Bowman, 
your  Taylor — all  of  whom  were  soldiers  of  the 
revolution,  and  the  last  of  whom  having  been 
a  member  of  the  two  conventions  of  Kentucky, 
observed,  in  an  apostolic  address,  last  session 
of  the  legislature:  "Mr.  Speaker,  some  gentle 
men  have  said,  they  believe  the  re-organizing 
act  is  unconstitutional;  sir,  I  KNOW  IT  TO 
BE  SO."  If  you  will  not  respect  the  opinions 
of  the  soldier  or  the  statesman,  of  the  living  or 
the  dead,  there  is  a  tribunal  before  whose  au 
gust  bar  your  stubborn  neck  must  bow,  and 
your  stiff  knees  must  bend;  the  people  of  Ken 
tucky  will  be  respected;  their  voice  has  been 
heard,  and  it  will  be  obeyed.  For  although 
you  are  high  in  office,  you  are  but  man,  weak 
man,  frail  and  fallible.  Emperors  and  govern 
ors  are  often  very  weak  men,  and  are  seen  to  be 
so  when  stripped  of  the  factitious  glare  of 
power: 
"Unbounded  power  and  height  of  greatness, 

give 

To  kings  that  lustre  which  we  think  divine; 
The  wise  who  know  them,  know  they  are  but 

men, 
Nay,  sometimes  weak  ones,  too." 

Motives  of  ambition  may  prompt  you;  the 
people  feel  none  such.  It  may  be  your  interest 
to  do  wrong;  it  is  always  theirs  to  do  right. 
This  is  proven  by  the  nature,  and  very  exist 
ence  of  our  free  institutions,  and  is  fortified  by 
our  experience.  If  these  evidences  of  popular 
rectitude  are  not  satisfactory  to  you,  allow  me 
to  add  the  authority  of  a  great  name.  In  Ca- 
to's  letters,  you  may  find  on  this  subject  the 


134 


TO  THE  GOVERNOR  ELECT  OF  KENTffCCT. 


following  just  and  enlightened  sentiments:  decided  that  the  court  of  appeals  cannot  be 
"It  is  ^certain  that  the  people,  if  left  to  them-  abolished,  except  by  a  newconvcntion  and 
selves  do  generally,  if  not  always,  judge  well.  |  that  necessarily,  your  act  ^SrganSnSS 
They  have  their  five  senses  m  as  great  perfec-  no  effect  on  the  judges  of  that  court.  And  if 
tion  a*  have  those  who  would  treat  them  as  if  |  our  opiaion  were  <festitute  of  the  auSj££ 
they  had  none.  And  there  is  oftener  tound  a  j  supp^  of  th  lain  {  t  f  }  l  ^nstifutSZ 
greatgeniusCarryingapltchforkthancarrying|an^of  the  aliiost  unanimous  concurrence  of 

*  "The  people  have  no  bias  to  be  knaves.     No  C^^JS*  ^  °f  W^  ™°? 

T  .,  .    A  i  —  "  ic-sLOOQ  aione,  unproppecl,  it  is  eiioiifh 

ambition  prompts  them;  they  have  no  rivals  ;  that  it  is  our  opirA^_lhe  ^  \Q\  Of^°^ 

for  place,  no  Competitors  to  pull  down;  tty  pie  on  the  meiing  of  their  own  formoflo£ 

have  no  darling  child,  pimp  or  re  ation  to  eminent.  This  ought  to  close  all  controversy 
raise;  they  have  no  occasion  for  dissimulation  It  is  strr  than  argument;  it  is  overwhelm' 
or  intrigue;  they  can  serve  no  end  by  faction;  |  ing  authority. 
thev  have  no  interest  but  the  general  interest."  i  -^  ,  .  /*, 

Determined, 


his  language  is  forcible,  and  applies  well. 


, 

,  however,  to  pursue  your  career  of 


consider  it  seriously  and  apply  it  justly.    For 
done    so,   you  have 


J.  Ulp    AttlJJi  Uti.4i*J      1O    J.^1  WJ.IL'i^j    ChUUL     <1  IJ  f  J  JL I C  O    W  Cll.  If*  -|*  i     A  * 

You  might  even  yet  profit  by  it,  if  you  will   s  ^-aggrandizement,  and  to  convince  the  peo 
1        N    it  justly.    For  ^e  that  you,  and  not  they,  ought  to  rule,  in 
so,   you  have 
>m  the  path  of  i 
.     Comeback;} 
nd  assist  (as  it 

carrying  their  will  into     ... 

J  **      .          '    -      istitution. 


i.uu  ueietoiuiu  i.a»,iig  uuu«  Bu,  v uu  ^vu  ,  e  . extremity  of  your  madness,  you  import 
blundered  and  wandered  far  from  the  path  of !  foreign  aid.  1  ou  invoked  and  have  obtained 
duty,  of  honor  and  of  patriotism.  Comeback-  i  *?«  assistance  of  Willis  Alston,  of  North  Car- 

-  „,.„.-. .^  /_„  :l  tolma.     You  hope,  with  his  assistance,  to  rev- 


relent;  submit  to  the  people,  and  assist  (as  it  °  m?'   .  *  ou  nope  witii  ms  assistan 
is  your  duty  to  do)  in  carrying  their  will  into  |  °,1.uftl,°.mze  Kent«cky,  and  overturn 


her  con- 


effect,  and  you  may  do  something  towards  les 
sening  that  weighty  burthen  of  responsibility, 
which  your  boldness,  and  vanity,  and  temeri 
ty  have  thrown  upon  your  shoulders.  But  on 
ly  yield  to  your  temper;  persist  in  your  oppo 
sition  to  the  people;  disregard  the  warnings  of 
wisdom  and  the  suggestions  of  duty — do  this 
if  you  choose,  but  recollect  that  you  are  now 
told,  that  if  you  do,  your  mad  career  will  sink 
you,  not  perhaps  as  low  as  Lucifer  fell,  but  as 
iustlv  and  as  hopelessly.  And  then  could  you 


complain,  if  the  political  historian  should  say 
of  you,  as  Isaiah  said  of  the  prince  of  evil — 
'How  art  thou  fallen  from  heaven,  O  Luci- 
Kow  art  thou  cut 
hich  did  weaken  the  na- 


fer,  son  of  the  morning! 
down  to  the  ground,  whicJ 


If  we  are  yet  to  learn  our  political  cate 
chism,!  pray  "you,  sir,  for  the  honor  of  Ken 
tucky,  for  your  own  dignity,  give  us  a  tutor  in 
our  own  borders.  If  you  cannot  do  this,  I  be 
seech  you,  most  kind  governor!  to  import  one 
from  Virginia  or  Pennsylvania;  from  Missouri, 
any  where,  sooner  than  from  "the  !N~orth 
State."  Or,  if  we  must  have  a  North  Caroli 
nian,  then,  sir,  I  implore  you,  to  employ  any 
other  preceptor  than  'Willis  Alston.  1  have  an 
insuperable  repugnance  to  learning  politics, 


may 


from  Willis   Alston.     In  this  I 
i  too  fastidious;  but  I  revolt  at  the  idea 


tions!  Foi  thou  hast  said  in  thy  heart,  I  will 
exalt  my  throne  above  the  stars  of  God;  I  will 
sit  also  upon  the  mount  of  the  congregation,  in 
the  sides  of  the  north.  I  will  ascend  above 
the  heights  of  the  clouds;  I  will  be  like  the 
Most  High.  Yet  thou  shalt  be  brought  down 
to  the  grave,  to  the  sides  of  the  pit.  They 
that  see  thec  shall  narrowly  look  upon  thce, 
and  consider  thee,  saying,  'Is  this  the  man 
that  made  the  earth  to  tremble?' " 

Such  would  be  the  fate  of  any  governor,  who 
should  ever  presume  to  set  himself  up  above 
the  people  who  made  him,  and  exalt  himself 
and  statQllitcs  above  the  constitution,  which 
was  made  to  guide  and  govern  him  and  them. 
We  will  have  no  dictator.  We  are  the  mas 
ters;  you  the  servant.  We  have  the  right  to 
govern,  and  we  will  govern.  You  shall  not, 
with  impunity,  resist  our  construction  of  our 
constitution. 

We,  the  people,  have  declared,  that  AVC,  and 
not  you  or  your  legislature,  spoke  into  being 
the  court  of  appeals;  that  it  is  constitutional, 
not  legislative;  that  its  origin  is  coeval  with 
the  constitution;  that  its  existence  was  from 
that  date  actual,  not  potential;  that  it  has  de 
pended  on  the  stability  of  the  constitution, 
and  not  on  the  vacillations  of  legislative  will. 

In    fine,  sir,   we,  the  umpires  of  your    own  j  you,  nor  taught  by  any "foreign  or  domestic  im- 
choice,  and  the  arbiters  of  the  last  resort,  have  |  postor.    We  have  been  under  your  guardian - 


by  instinet.  I  do  not  know  that  I  could  ex 
plain  to  your  satisfaction,  the  reasons  of  my  in 
vincible  hostility  to  Mr.  Alston's  tuition. — 
With  me  it  is  an  affair  of  sentiment,  more 
than  of  reason;  it  is  a  sort  of  "je  ne  sais  quoi," 
I  feel  it  strongly,  but  cannot  describe  it.  Lest, 
however,  you  may  ascribe  improper  motives 
to  my  remonstrance,  I  assure  you  that  I  am 
not  influenced  by  a  recollection,  that  Mr.  Al 
ston  submitted  to  a  horse-whipping  by  John 
Randolph;  nor  by  any  suspicion  that  he  may 
be  the  son-in-low  of  Aaron  Burr,  or  a  relative 
of  Aaron  Burr's  son-in-law.  In  whatever  de 
gree  of  propinquity  he  may  stand  to  Burr's 
son-inlaw,  he  might  still  be  honest,  because  it 
has  been  said,  that  the  son-in-law  of  Burr 
was  an  honorable  and  accomplished  man. 
But  I  will  not  be  instructed  on  my  own  consti 


tution,  nor  lectured  on  my'political  duties  bv 
Willis  Alston. 

Mr.  Alston  is  certainly  very  pragmatical. 
What  right  has  he  to  obtrude  his  arguments, 
his  censures,  •  or  his  advice,  on  Kentucky? 
What  right  had  you  to  employ  him  as  our  dic 
tator  or  instructor?  Are  you  not  sufficiently 
dictatorial?  And  have  you  not  around  you 
many  idle  men,  who  are  far  batter  qualified  to 
be  your  assistants,  than  Willis  Alston?  Sir, 
to  be  plain  with  you,  we  have  "set  up"  for 
ourselves,  and  clo  not  intend  to  be  ruled  by 


TO  THE  GOVERNOR  ELECT  OP  KENTUCKY. 


135 


ship  too  long  already.  "We  have  paid  dear 
ly  for  the  thistle?"  ' 

In  sober  seriousness,  sir,  pardon  me  for  in 
quiring  how  you  procured  from  "Willis  Alston, 
his  "set  speech"  on  our  goverment,  our  parties, 
and  your  message?  Did  you  ask  him  to  make 
a  speech  for  you?  You  would  gratify  the  cu 
rious  by  publishing  your  letter  to  Mr.  Alston, 
which  brought  forth  his  long  and  silly  letter. 
Did  you  publish  his  letter  without  his  author 
ity.  If  you  did,  he  ought  not  to  complain, 
because  he  might  have  known,  that  there  was 
danger  of  its  exposure  by  you,  unless  you 
could  have  believed  that  it  contained  "cabinet 
secrets." 

I  am  disposed  to  believe  that  the  letter  was 
writtjcn  for  publication;  it  carries  on  its  face 
eridence  of  careful  preparation  for  the  public 
eye.  If  it  were  written  for  publication,  Mr. 
Willis  Alston  has  been  guilty  of  an  impudent 
intrusion  on  the  people  of  this  state,  and  de 
serves  castigation.  When  he  becomes  politi 
cal  knight-errant,  he  must  expect  nothing  but 
derision  and  contempt.  Was  Mr.  Alston's 
letter  the  only  one  which  you  have  been  able 
to^procure  in  all  North  America?  I  suppose 
so,  for  if  you  had  another,  you  would  have  lost 
no  time  in  giving  it  publicity. 

Mr.  Alston  has  rendered  himself  very  ridic 
ulous,  by  the  letter  which  he  has  written;  and 
you  are  no  less  so,  for  extorting  it,  and  expos 
ing  it  by  publication.  So  far  as  he  has  dealt 
in  assertion,  he  is  evidently  and  notoriously 
incorrect.  When  he  attempts  to  reason,  he  is 
not  more  successful.  He  has  shewn  that  he  is 
in  total  ignorance  on  the  entire  subject  of  his 
letter. 

Our  judicial  controversy  is  not  like  that 
which  was  agitated  in  congress  in  1802.  The 
principles  involved  in  the  two  cases  are  entire 
ly  dissimilar.  Congress  abolished  inferior 
courts,  which  had  been  created  by  act  of  con 
gress;  they  did  not  attempt  to  abolish  the  su 
preme  court,  which  is  engrafted  in  the  consti 
tution.  Why  did  they  not?  Because  they 
knew  they  could  not.  They  had  the  will,  but 
lacked  the  power.  Was  not  John  Marshall 
then  the  chief  justice  of  that  court?  And  was 
he  not  obnoxious  to  the  resentments  of  the  re 
publican,  and  then  dominant  party?  Were 
not  other  judges  of  the  supreme  court  equally 
as  obnoxious  as  the  chief  justice?  Why,  then, 
were  they  not  expelled,  by  an  abolition  or  a 
reorganization  of  the  supreme  court?  Why 
did  not  congress  pass  an  act,  declaring  that 
"the  supreme  court  is  hereby  abolished,"  or 
that  "all  laws  in  relation  to  the  supreme  court 
are  hereby  repealed,  and  the  same  are  hereby 
re-enacted?" 

The  wise  republican  statesman  of  that  day, 
never  had  thought  of  your  hocus  pocus  mode 
of  judge  breaking.  It  was  too  shallow  an  ar 
tifice,  too  low  for  grave  statesmen.  They 
knew  that  it  would  be  perfectly  ridiculous. 
Such  a  project  was,  therefore,  not  even  hint 
ed  at.  It  would  have  been  scouted  as  the 
offspring  of  a  deranged  mind,  or  a  wicked 
heart. 

The  constitution  of  the  union,  like  that  of. 


Kentucky,  declares,  that  "the  judiciary  pow 
er  shall  be  vested  in  one  supreme  court,  and 
such  inferior  courts,"  <fec.  It  gives  to  congress 
the  power  to  establish  inferior  courts,  but  none 
to  create  a  supreme  court;  that  is  ordained  im- 
peritavely  by  the  constitution,  And  any  and 
every  court  which  shall  be  established  by  con 
gress,  or  by,  our  state  legislature,  must  clearly 
be  an  inferior  court.  If,  therefore,  your  famous 
act  be  valid,  if  it  establishes  your  new  court, 
that  court  is  an  inferior  court,  and  its  [decis 
ions,  like  those  of  other  inferior  courts,  must 
be  subject  to  the  revision  and  correction  of  the 
supreme  court  or  court  of  appeals.  The  leg 
islative  court  is  "ex  vi  termini"  inferior  and 
subordinate  to  the  constitutional  court.  The 
power  of  the  legislature  to  erect  inferior  courts 
is  unlimited,  and  is  illimitable,  except  by  a 
sound  discretion.  They  may,  therefore,  estab 
lish  a  Desha  court,  a  Barry  court,  or  any  other 
court  however  anomalous  or  nondescript;  and 
they  may  christen  it  "the  court  of  appeals;"  or, 
"a  court  of  appeals;"  or,  "the  court  of  the  star 
chamber;"  'the  governor's  court;'  "the  people's 
court;'  or  give  it  any  other  name  in  the  re 
organizing  nomenclature;  but  it  is,  after  all,  an 
INFERIOR  court.  There  can  be  but  one  court  of 
appeals,  and  that  you  cannot  abolish.  The 
constitution  only  gives  you  power  to  erect 
and  establish  inferior  courts;  and,  therefore, 
all  courts  erected  and  established  by  you, 
must  be  inferior  courts. 

Circuit  courts  may  be  abolished,  1st.  Be 
cause  they  were  created  by  an  act  of  assem 
bly^  2d.  Because  they  are  inferior  courts, 
which  the  legislature  may  "from  time  to  time 
erect  and  establish;"  3d.  Because  experience 
may  prove  that  other  systems  are  more  suita 
ble.  The  circuit  judge  holding  his  office, 
during  good  behavior  and  the  continuance  of 
his  court,  must,  although  he  behave  well,  go 
out  of  office  when  his  court  ceases  to  exist — 
because,  there  being  no  circuit  court,  there  can 
be  no  circuit  judge — there  cannot  be  a  judge 
without  a  court,  although  there  can  be  a  court 
without  ajudge.  To  exemplify  this,  suppose 
a  former  judge  of  a  district  court  should  now 
claim  to  be  district  judge,  every  man  would  at 
once  say  that  he  cannot  be  judge,  because 
there  is  no  district  court.  But  there  are  cir 
cuit  courts;  and  suppose  that  Judge  Shannon, 
one  of  the  circuit  judges,  should  resign  his  of 
fice,  is  there  not  still  a  circuit  court  in  his  cir 
cuit?  The  court  exists,  whether  there  is  a 
judge  or  not. 

But  none  of  these  considerations  apply  to 
the  court  of  appeals.  It  can  never  be  abol 
ished  by  the  legislature;  nor  can  any  other 
be  substituted  in  its  stead.  And  therefore  a 
judge  of  this  court  can  only  forfeit  his  office  by 
misbehavior — pass  what  law  you  will,  there  is 
still  a  court  of  appeals — its  identity  is  never 
lost — its  existence  can  never,  for  one  moment, 
be  suspended.  And  consequently  he  who  was 
once  ajudge  of  the  court  of  appeals,  and  who 
has  not  resigned  or  been  removed  by  impeach 
ment  or  address,  continues  to  be  a  judge  of 
the  court  of  appeals;  because  the  court  is  still 
the  court  of  appeals,  and  because  he  is  entitled 


136 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY. 


to  his  office  while  the  court  of  appeals  shaP 
continue  to  exist. 

He  who  cannot  perceive  this  plain  difference 
between  the  supreme  and  inferior  courts,  must 
be  incapable  of  discrimination  or  analysis. 
Nothing,  to  my  mind,  could  be  more  palpable, 
than  this  radical  distinction  in  the  origin  and 
duration  of  the  two  courts,  and  the  tenure  of 
their  offices.  In  every  essential  attribute  of 
existence,  the  courts  differ  "-toto  celo" — as  far  as 
the  heavens  from  the  earth. 

But  none  are  so  blind  as  those  who  will  not 
see.  You  are  resolved  to  shut  your  eyes,  that 
you  may  not  have  even  a  twilight  view  of  the 
.subject.  And  employing  as  you  do  all  your 
resources  to  find  apologies  for  confounding  the 
two  courts,  it  is  not  wonderful  that  some  of 
your  party  have  convinced  themselves  that  the 
court  of  appeals  is  as  destructible  ag  the  inferi 
or  courts.  For  we  are  informed  by  Terence, 
that 
"Verumputes  haudcicgore,  quodvaldeexpectas.'3 

"You  believe  that  eagerly  which  you  hope 
for  earnestly." 

But  many  of  you  have  had  too  much  light 
to  plead  this  apology.  You  do  see.  You  know 
that  you  are  resisting  the  effulgence  of  solar 
light;  but  your  pride  and  ambition  will  not 
suffer  you  to  acknowledge  your  errors.  You 
have  gone  so  far  as  to  consider  retreat  perilous 
and  ignominious.  In  this,  however,  you  de 
ceive  yourselves,  and  if  you  persist,  time  will 
open  your  eyes  when  it  will  be  too  late  to  re 
trieve  what  you  will  have  lost,  and  forever. 

Then  Mr.  Willis  Alston's  puff  will  afford 
you  no  consolation.  Sir,  it  is  more  magnani 
mous  to  acknowledge,  than  to  persist  in  an  er 
ror.  It  is  better  to  forsake  "your  way"  than 
to  pursue  it  to  destruction.  It  will  be  much 
more  glorious,  and  eventually  more  advan 
tageous  to  you,  even  now  to  repent,  than  to  die 
in  your  sins.  To  such  as  have  committed  the 
"unpardonable  sin,"  there  is  no  hope.  These 
are  few,  and  "have  sinned  against  light  and 
knowledge."  They  have  fanned  the  llame  of 
discord  and  prevented  its  extinction.  Wheth 
er  you  are  one  of  these,  your  own  conscience 
may  decide.  Whether  you  are  or  not,  I  am 
bound  to  say  to  you,  as  well  as  to  them — 

"You  have  not,  as  good  patriots  should  do, 
studied 

The  public  good,  but  your  particular  ends; 

Factious  among  yourselves;  preferring  such 

To  offices  and  honors,  as  ne'er  read 

The  elements  of  saving  policy; 

But  deeply  skilled  in  all  the  principles 

That  usher  to  destruction." 

To  exalt  yourselves,  you  have  endeavored 
to  bear  down  every  barrier  which  checks  your 
ambition,  and  opposes  your  absolute  dominion. 
You  tremble  in  the  presence  of  a  pure  and  in 
dependent  court.  You  want  a  subservient 
court.  One,  the  judges  of  which  will  be  de 
pendent  for  office  and  for  bread  on  your  boun 
ty.  And  if  you  could  succeed  in  subjecting 
the  supreme  court  to  your  will,  you  might  cer 
tainly  attain  your  objects.  You  might  then 


have  Beotian  judges  whom  Hesiod  calls  "de- 
vourers  of  presents,"  You  might  then  have 
the  ancient  English  courts,  in  which  suiters 
paid  fines  to  the  king  for  his  favor  or  fobear- 
ance.  Such  courts  as  those  of  Edward  III, 
where  his  mistress  (Alice  Pierse)  exerted  so 
ranch  influence,  that  it  became  necessary  to 
forbid  her  interference  under  pain  of  banish 
ment;  such  courts  as  those  of  Charles  II,  in 
which  a  Kentucky  Charley  may  employ  his 
purchased  influence  for  the  party  whose  purse 
is  longest;  such  courts  as  those  once  so  much 
prostituted  by  Bishop  Laud,  as  to  kindle  a 
fiame  which  could  only  be  extinguished  by 
blood;  such  courts  as  those  of  revolutionary 
France,  by  whose  sentence  all  were  decapi 
tated  who  would  not  bow  to  the  ruling  faction. 
Does  your  ambition  require  such  engines  as 
these?  Such  you  might  have,  if  you  can  con 
vert  the  court  of  appeals  from  a  constitutional 
into  a  legislative  court.  It  would  then  not  be 
the  co\irt  of  the  people,  but  the  servile  instru 
ment  of  faction. 

But  thanks  to  the  tutelar  genius  of  our  coun 
try,  we  have  a  constitution,  which,  while  it 
lives,  can  secure  us  from  such  anarchy.  That 
constitution  is  confided  to  us,  the  people,  and 
we  will,  I  trust,  do  whatever  is  proper  for  vin 
dicating  its  integrity  and  sustaining  its  su 
premacy.  We  have  the  power,  and  it  is  our 
duty  to  do  it  effectually  and  promptly. 

"In  the  situation  in  which  we  stand,  I  sec 
no  other  way  for  the  preservation  of  a  decent, 
attention  to  the  public  interest,  in  the  repre 
sentatives,  but  the  interposition  of  the  body  of 
the  people,  whenever  it  shall  appear  by  somo 
flagrant  and  notorious  act,  by  some  capital  in 
novation  that  the  representatives  are  going  to 
overleap  the  fences  of  the  law,  and  to  intro 
duce  an  arbitrary  power."  BURKK. 

"Whenever  the  legislature  shall,  either  by 
ambition,' fear,  folly,  or  corruption,  endeavor 
to  grasp  themselves,  or  put  into  the  hands  of 
another  an  absolute  power  over  the  lives,  lib 
erties,  and  estates  of  the  people;  by  this  breach 
of  trust,  they  forfeit  the  power  the  people  put 
into  their  hands  for  quite  contrary  ends. 
What  I  have  said  here  concerning  the  "legisla 
tive  in  general,  holds  true  also  concerning  the 
supreme  executor,  WHO  ACTS  CONTRARY 
TO  HIS  TRUST,  WHEN  HE  EITHER  EM 
PLOYS  THE  FORCE,  TREASURE  OR  OF 
FICES  OF  THE  SOCIETY  TO  CORRUPT 
THE  REPRESENTATIVES,  AND  GAIN 
THEM  TO  HIS  PURPOSES."  LOCKE. 

The  foregoing  sentiments  are  re-echoed  in 
our  ears  by  Mr.  Madison,  in  his  preamble  to 
the  celebrated  Virginia  resolutions  of  '98. 
And  in  that  memorable  document,  he  more 
over  tells  us,  that  WHENEVER  THERE  IS 
A  CONTEST  BETWEEN  THE  DEPART 
MENTS  OF  GOVERNMENT, THE  PEOPLE 
ALONE  CAN  SETTLE  IT,  AND  THAT 
THEIR  DECISION,  WHATEVER  IT  BE, 
OR  HOWEVER  GIVEN,  MUST  BE  FINAL 
AND  IMPERATIVE. 

You  are  mistaken,  sir,  if  you  suppose  that, 
you  will  promote  your  own  Interest  or  happi- 


TO  THE  GOVERNOR  ELECT  OF  KENTUCKY.  137 

ness,  by  your  crusade  against  justice,  order,  !  Here  is  a  faithful  picture  of  an  arrogant, 
and  the  constitution.  Look  around  you,  and  ;  self-sxifficient,  ignorant  ruler.  Does  your 
behold  your  situation.  Listen  to  Fenelon  and  conscience  tell  you,  that  in  you  may  be  seen 
learn  wisdom;  this  is  his  language:  "Of  all  jits  original?  If  it  does,  you  may  yet  profit  by 
men,  that  king  is  the  most  unhappy  who  be- 1  its  exhibition.  If  you  will  still  continue 
lieves  he  shall  become  happy  by  rendering  blind  to  your  condition,  and  cling  to  your 
others  miserable.  His  wretchedness  is  idols,  I  trust  that  the  people  next  August,  in 
doubled  by  his  ignorance — he  is  indeed  afraid  their  majesty,  will  proclaim  to  you  and  them, 
to  know  whence  it  proceeds,  and  he  suffers  a  in  the  language  of  Cicero: 
crowd  of  sycophants  to  surround  him  that !  <<obruat  {Uud  mah  t  mnle  rttentum> 
keep  truth  at  a  distance.  He  is  a  slave  to  his  fe  imperium: 

passions,   and  an    utter  stranger  to  his  duty. .          y 

He  has  never  tasted  the  pleasure  of  doing  "Perish  that  power  which  has  been  ob- 
good,  nor  been  warmed  to  sensibility  by  the  tained  by  evil  means,  retained  by  similar 
charms  of  virtue.  He  is  wretched,  but  the  practises,  and  which  is  administered  as  badly 
wretchedness  that  he  suffers  he  deserves,  and  as  it  was  acquired."  This  shall  at  least  be  the 
his  misery,  however  great,  is  perpetually  in-  prayer  of  A  PLEBIAN. 

creasing." 

18 


PRELECTION. 


THE  friends  of  "the  American  S}^stem"  in  the  United  States  having  re 
solved  to  hold  a  National  Convention  at  the  Capital  of  Pennsylvania,  in 
the  year  1827,  for  consulting  as  to  the  most  prudent  platform  of  protec 
tion  by  a  tariff,  a  local  Convention  in  Kentucky,  in  July  of  the  same  year, 
appointed  JOHN  HARVEY,  THOMAS  C.  HOWARD,  JAMES  COWAN,  RICHARD  H. 
CHINN,  and  GEORGE  ROBERTSON,  as  delegates  to  represent  Kentucky  in  the 
Harrisburgh  Convention.  All  of  them,  except  Mr.  HOWARD,  attended  that 
Convention,  and,  after  its  adjournment,  made  the  following  report  to  the 
people  of  Kentucky.  The  principles  therein  illustrated — had  they  not 
been  superseded  by  the  Compromise  of  1852-3 — would,  as  many  states 
men  believe,  have  established,  before  this  time,  a  degree  of  national 
prosperity  and  independence  which  would  have  commended,  to  general 
approval,  the  proper  policy  of  protection  prudently  applied  to  Young 
America.  The  report  presents  an  outline  of  the  principles  and  policy 
of  Mr.  ROBERTSON,  who — though  he  always  advocated  the  power  and  ex 
pediency  of  protection,  properly  discriminating  as  to  subjects,  and  time, 
and  degree — never  voted  for  any  tariff  bill  while  he  was  in  Congress,  on 
ly  because  all  of  them  were,  in  his  judgment,  so  framed  as  to  operate 
unjustly  and  rather  destructively  to  the  proper  ends — that  is,  national 
wealth,  economy  and  equality. 

Reviewing  the  past  and  contemplating  the  present,  many  wise  men 
believe  that  the  compromise  with  nullification  was  barren  and  unfortu 
nate  to  conservatism,  and  still  more  think  that  had  any  Compromise  been 
proper,  a  paralysis  of  American  protection  was  too  high  a  price. 


TO  THE  PEOPLE  OF  KENTUCKY- 


FELLOW  CITIZENS: —  [     We  were  not  insensible  of  the  honor  confer- 

In  undertaking  to  fulfil  the  expectations  of  red  on  us,  nor  unmindful  of  the  responsi- 
thos«by  whom  we  were  appointed  to  represent  bility  incurred  by  its  acceptance.  If  longer 
Kentucky  in  the  convention  lately  held  at  time  could  have  been  allowed  for  a  more  gen- 
Harrisburgh,  we  were  certainly  influenced  by  [eral  expression  of  your  approbation  of  the  ob- 


no  other  consideration,  than  a  sincere  desire 
to  contribute,  as  far  as  we  were  able,  to  the  ad 
vancement  of  a  cause,  which  is  essentially 
identified  with  the  future  welfare  of  our  coun 
try.  To  ameliorate  the  condition  of  the  far 
mer  and  excite  domestic  industry  \ generally, 


jects  of  the  convention,  and  the  choice  of  your 
delegates,  we  would  have  been  gratified.  But 
feeling  the  necessity  of  a  representation  from 
our  state,  and  believing  that  you  could  not  be 
otherwise  than  favorable  to  the  invitation  of 
Pennsylvania,  we  did  not  hesitate,  at  thchaz- 


were  the  only  objects  of  the  convention.  It :  ard  of  personal  inconvenience  and  pecuniary 
was  an  able  and  venerable  body  of  100  men,  loss,  to  repair,  without  delay,  to  the  scene  of 
from  13  states  of  the  Union,  who  had  assem- 1  deliberation,  and  co-operate  with  distinguish 


bled  on  the  30th  of  July,  and  adjourned  on  the 
5th  of  August.  One  of  our  colleagues,  (Mr. 
Howard)  did  not  attend. 


ed  fellow-citizens  from  other  states,  in  devising 
and  recommending  such  measures,  as  should 
be  deemed  most  suitable  for  th«  relief  of  our 


TO  THE  PEOPLE  OF  KENTUCKY. 


139 


suffering  industry,  and  the  useful  application 
of  our  vast  and  dormant  resources. 

The  power  to  protect  agriculture,  commerce 
•and  manufactures/  the  three  great  elements  of 
national  prosperity,  has  been  exercised  by  con 
gress  and  acquiesced  in  by  the  people,  ever 
since  the  first  session  of  the  national  legisla 
ture  in  1789.  And  the  policy  of  its  applica 
tion  to  many  of  the  branches  of  those  three  in 
terests,  had  not  been  questioned.  Gen.  Wash 
ington,  Mr.  Adams,  Mr.  Jefferson,  Mr.  Madi- 
ison,  Mr.  Monroe,  Gen.  Hainilton,  and  most  of 
our  distinguished  statesmen,  have  urged  the 
exercise  of  this  protective  power,  and  the  ben 
eficial  results  of  its  judicious  application,  are 
practically  exemplified .  To  the  provident  ex 
ertion  of  this  bcnificent  power  of  protection 
by  a  tariff,  the  United  States  are  indebl  ed  for 
the  prosperity  of  many  branches  of  American 
enterprise — naval,  agricultural  and  manufac 
turing. 

Our  tonnage  has  been  protected  by  a  dis 
criminating  duty  of  700  per  cent.  The  growth 
of  cotton  and  tobacco,  and  the  manufacture  of 
sugar,  have  been  encouraged  by  high  and  (to 
the  consumer  of  the  latter  particularly)  sin 
gularly  heavy  duties,  with  the  avowed  object 
of  protecting  the  domestic  article.  The  man 
ufacture  of  glass  and  salt  has  been  encour 
aged  by  duties  unusually  high;  and  to  the 
wholesome  protection  of  a  tariff  our  success,  in 
many  manufactures  in  which  we  are  now  un 
rivalled,  is  justly  ascribable. 

Our  cotton  manufactories  have  attained  their 
present  maturity  and  surprising  success,  in  a 
few  years,  under  the  cover  of  "a  judicious  tar 
iff;"  and  now  supply  not  only  our  own  con 
sumption  with  better  and  cheaper  fabrics,  by 
at  least  50  per  cent.,  than  we  ever  bought  from 
abroad,  but  export  to  foreign  countries  to  the 
amount  of  $4,000,000;  thereby,  to  that  extent, 
enriching  our  own  people,  and  advancing  our 
own  commerce. 

Deplorable  indeed  would  be  the  condition 
of  the  Union,  if  after  the  people  of  the  states 
Lave  forbidden  their  local  legislatures  to  im 
pose  duties  on  imports,  or  to  regulate  com 
merce,  either  foreign  or  among  the  states,  and 
have  delegated' those  powers  to  congress,  there 
should  be  no  lodgment  of  power  anywhere,  to 
protect  their  agricultural  and  manufacturing 
industry  and  capital,  by  laws  regulating  the 
importation  of  foreign  products,  and  counter 
acting  foreign  legislation. 

The  states  have  only  surrendered,  they  have 
not  annihilated  this  power.  It  is  inherent  in 
every  government,  and  has  been  translated  by 
the  people,  in  the  federal  constitution,  to  con 
gress,  a  safer  depository  of  such  power  than 
the  state  legislatures,  because  its  legislation 
will  be  more  uniform,  comprehensive  and  ef 
fective.  Congress  is  expressly  vested  with  the 
power  to  regulate  commerce,  and  to  lay  and 
collect  taxes,  and  to  impose  duties.  "Regu 
late  commerce"  for  what  purpose?  No  other 
or  more  circumscribed  than  the  general  wel 
fare,  subject  only  to  the  qualification  of  uni 
formity  among  the  ports  of  the  respective 


states.  Has  not  congress  all  the  power  on  that 
subject  which  each  and  all  of  the  states 
possessed  before  the  adoption  of  the  federal 
constitution?  And  did  not  each  of  them  ever 
have  the  plenary  power  to  regulate  commerce, 
by  duties,  in  such  a  mode  as  to  protect  their 
own  industry  and  capital  against  foreign  mo- 
nopolyjor  even  competition?  The  general  gov 
ernment  is  now  the  trustee  of  all  that  state 
power.  And  the  people  have  a  right  to  expect 
and  require  that  the  great  trust  will  be  faith 
fully  fulfilled  to  the  full  extent  of  their  inter 
est  and  proper  independence. 

The  legislature  of  our  parent  state  (Virginia) 
however,  at  its  last  session,  influenced  by  sen 
timents  inexplicable  by  us,  but  animated,  as 
we  believe,  by  a  misguided  patriotism,  denied 
to  congress  this  necessary  and  familiar  power, 
and  denounced  its  exercise  for  the  last  37  years, 
by  every  congress  and  under  every  adminis 
tration,  as  usurpation  and  tyranny.  The  cham 
ber  of  commerce  of  Charleston,  as  if  by  con 
cert,  cetemporaneously,  or  nearly  so,  announ 
ced  similar  sentiments  in  a  manner  intended 
to  rouse  the  opposition  of  the  south  to  the  prin 
ciple  of  a  domestic  tariff.  And  about  the  same 
time  a  distinguished  senator  of  the  south,  and 
others  of  his  party,  spoke  of  the  probable  suc 
cess  of  the  Woollen's  bill,  as  "a  calamity  more 
afflictive  than  war;"  and  to  defeat  the  passage 
of  the  bill,  or  if  ever  passed,  "to  RESIST"  its 
enforcement,  they  recommended  conventions 
in  the  south,  to  defend  what  they  seemed  er 
roneously  and  unfortunately  to  regard  as 
"southern  interests." 

The  friends  of  the  woollens  and  other  do 
mestic  interests  in  Pennsylvania,  (than  which 
no  state  is  more  peaceful  or  patriotic, )surpris- 
edand  somewhat  alarmed  at  all  this  unexpect 
ed  procedure,  considered  it  proper  to  endeav 
or  to  adopt  some  pacific  and  rational  measures 
for  counteraction  and  self  defence.  And  for 
this  purpose,  and  this  only,  the  people  of  .'.'enn- 
sylvania  recommended  and  solicited  a  conven 
tion,  at  their  capital,  of  delegates  from  such  of 
the  states  as  were  favorable  to  what,  by  a  new 
and  appropriate  nomenclature,  is  styled  "the 
American  system."  Such  portions  of  Ken 
tucky  as  had  time  to  deliberate  on  this  invi 
tation,  determined  to  accept  it,  and  chose  us 
to  represent  your  interests. 

We  neither  solicited  nor  desired  this  employ 
ment.  The  only  compensation  which  we  have 
received  for  six  week's  service,  has  been  the 
individual  pleasure  and  improvement  which 
we  derived  from  the  interesting  incidents  with 
which  our  travel  was  replete,  and  the  advan 
tage  of  a  cordial  intercourse  with  men  distin 
guished  for  their  intelligence  and  love  of  coun 
try,  from  twelve  of  our  sister  states.  And  all 
the  reward  we  expect  or  would  receive,  is  your 
approbation,  and  our  own  consciousness  of 
having  faithfully  endeavored,  at  the  expense 
of  some  toil  and  money,  and  much  domestic 
comfort,  to  promote  your  best  interests.  We 
have  no  fear  that  we  have  been  guilty  of  any 
incivism.  The  objects  of  the  convention  were 
those  only  which  have  been  avowed  by  its 


140 


TO  THE  PEOPLE  OP  KENTUCKY. 


friends.  And  those  objects  have  been  fully 
accomplished — as  far  as  the  moral  influence  of 
the  unanimous  opinion  of  such  a  body  of  men, 
can  be  expected  or  should  bo  allowed  to  op 
erate  on  public  sentiment  or  national  legis 
lation.  Our  time,  while  in  session,  was 
sedulously  and  exclusively  devoted  to  the 
consideration  of  the  be»t  means  of  relieving 
national  distress,  and  advancing  national 
industry.  Our  deliberations  were  charac 
terised  by  moderation,  liberality  and  harmo 
ny  ;  and  marked,  as  the  result  will  shew,  by 
no  local  interest  or  predilection.  They  were 
— as  they  should  have  been — in  their  manner 
temperate  and  decorous,  and  in  their  aims,  im 
partial  and  national.  Whatever  was  done,  was 
done  openly;  and  the  best  vindication  of  the 
convention  would  be  a  publication  of  all  that 
was  said  and  done,  and  attempted  to  be  done, 
by  the  body  collectively  or  its  members  indi 
vidually. 

We  will  not  commit  our  own  dignity,  nor  in 
sult  yours,  by  noticing  (for  the  purpose  of 
gravely  defending  ourselves  from  their  appli 
cation)  the  opprobious  epithets  which  have 
been  uttered  and  published  in  reference  to  the 
convention,  by  some  individuals  of  morbid 
sensibility  and  of  more  morbid  taste.  Nor  will 
we  notice,  for  any  other  purpose  than  to  shew, 
that  they  have  not  escaped  our  observation,  the 
reckless  prophecies  of  dire  calamity,  with 
which  others,  not  more  enviable  for  their  tem- 

Eer  or  sagacity,  have  essayed  to  alarm  your 
jars  and  awaken  your  prejudices.  If  such 
names  as  Jeremiah  Morrow,  Hezekiah  Niles, 
Mathew  Carey,  Joseph  Ritner,  the  venerable 
Judge  Huston,  the  patriarchal  Tibbets  and 
Payne,  and  others  which  might  be  mentioned, 
cannot  rescue  the  convention  of  which  they 
were  members,  from  unjust  reproach,  we  could 
offer  nothing  to  still  the  tongue  of  slander. 
We  shall  only  add,  on  this  subject,  that  we 
have  done  nothing  but  what  every  citizen  of 
the  United  States  has  the  constitutional  right 
to  do,  peaceably  and  without  annoyance  or  re 
buke;  and  we  have  done  what  we  were  called 
to  do,  in  a  manner  becoming  the  dignity  of  the 
American  people,  and  free  from  justexception. 

It  is  not  treasonable  or  even  presumptuous, 
to  petition  congress  for  a  redress  of  grievances. 
And  we  shall  only  ask  those  who  have  ventur 
ed  to  question  our  candor  or  purity  of  motive, 
to  be  careful  lest,  by  the  temper  and  object  of 
their  denunciations,  they  subject  themselves  to 
a  more  just  and  disastrous  recrimination. 

The  convention,  as  many  of  you  will  have 
heard,  concurred  unanimously  in  a  memorial 
to  congress,  soliciting  additional  protection  to 
the  growth  of  hemp  and  flax,  arid  to  the  man 
ufactures  thereof — the  manufacture  of  iron, 
and  fine  cottons,  and  the  growth  and  manufac 
ture  of  wool. 

The  capacity  of  our  country  to  produce  hemp 
and  flax,  is  almost  infinite:  and  no  statesman 
who  will  carefully  examine  the  statistics  bear 
ing  on  this  subject,  can  doubt  that,  with  a  very 
little  additional  protection,  a  domestic  market 
•will  b«  secured,  which  will  enable  us  to  in 


crease  the  growth  and  manufacture  of  hemp 
and  flax  to  an  extent  which  will  be  singular 
ly  advantageous  to  the  soil  and  agriculture  of 
our  country,  and,  as  in  the  case  of  cottons,  far 
beyond  our  own  domestic  and  naval  uses. 

During  the  fiscal  year  1826,  the  following 
amounts  of  hempen  and  flaxen  fabric,  were 
imported  into  the  United  States,  viz: 
Articles  not  subject  to  the  duty 

of  25  per  cent,  -        -     $2,757,080 

Those  subject  to  the  duty  of  25 

per  cent,,  929,946 

Other  hempen  articles,  excepting 

cordage,  48,900 

Total,  -  -  -  $3,764,781 
Cotton  bagging,  3,436,460  sq  yds, 

valued  at  -  1,781,188 
Twine,  pack-thread,  and  seine 

twine,  326,640  Ibs,  -  -  60,827 

Cordage,  1,61 3,604  Ibs  -  -  06,599 

Total,        -        -        -         $1,92£,614 
In  the  same  year,  raw  hemp  and  flax  were 
imported  as  follows: 

Hemp  9,869,000  Ibs,        -        -  $551,757 

Flax,  about  600,000  Ibs,        -        -          72,000 


Total, 


$623,757 


For  the  manufacture  of  hempen  and  flaxen 
articles  imported,  21,889,615  Ibs.  of  hemp 
and  flax  would  be  necessary — which  would  be 
worth  $1,500,000 — requiring  for  their  growth 
about  51,500  acres  of  land,  and  giving  employ 
ment,  in  manufacturing  them  alone,  to  at  least 
700  persons,  and  indirectly  to  a  great  many 
more. 

Within  the  last  six  years  manufactories  have 
been  established  in  the  United  States,  Avhich 
already  supply  one  half  of  our  sail  cloth;  but 
it  is  believed  that  they  cannot  be  sustained 
much  longer,  against  foreign  capital  and  com 
petition  and  legislation,  without  some  further 
support  from  government.  The  duty  now  im 
posed  on  the  raw  material  is  15  per  cent,  ad 
valorem,  and  is  no  higher  on  the  manufactur 
ed  article.  Add  to  this  the  fact,  that  England 
grants  a  bounty  of  25  per  cent,  on  the  expor 
tation  of  linen. 

How  easy,  from  these  facts,  would  it  be  for 
us  to  supply  ourselves  with  the  hempen  and 
flaxen  fabrics  from  our  own  factories?  A  small 
additional  duty  on  the  raw  material  and  on 
cordage,  canvas  and  cotton  bagging,  would  se 
cure  to  us  our  own  market;  the  necessary  effect 
of  which  would  be,  a  greater  diversity  and 
productiveness  of  labor,  some  relief  to  our  de 
pressed  agriculture — and  more  security,  and 
independence  to  our  citizens  in  seasons  of 
scarcity  and  of  war. 

The  house  of  representatives  of  the  United 
States  in  1824,  passed  a  bill  to  allow  a  duty  of 
4J4j  cents  on  cotton  bagging,  but  by  the  un 
lucky  secession  of  a  western  senator,  of  high 
name  and  pretensions,  it  was  unfortunately 
reduced  to  3%.  It  is  believed  that  the  imme 
diate  repreaentatives  of  the  people  spok«  their 


TO  THE  PEOPLE  OF  KENTUCKY. 


141 


will  in  passing  this  bill,  and  that  it  will  not 
be  long,  under  favorable  auspices,  before  it  is 
reiterated  with  more  success,  and  shall  become, 
as  it  should  have  done  in  1824,  the  law  of  the 
land. 

The  prosperity  of  the  grain  growing  states, 
has  been  dftclining  ever  since  the  peace  of  1815. 
"We  are  deprived  of  our  accustomed  foreign 
markets,  and  have  not  substituted  others  at 
home.  The  consequences,  as  might  have 
been  foreseen,  are  languor  and  distress  in  the 
fairest  and  most  prolific  regions  of  the  middle 
and  western  states.  The  remedy  is  obvious 
and  natural.  It  is  two  fold . — 1st.  Increase  the 
ratio  of  the  home  demand  to  the  supply,  by 
encouragtng  home  manufactures,  which  will 
certainly  multiply  the  number  of  non-produ 
cing  consumers — augment  the  demand  for 
breadstuffs  at  home,  the  only  sure  and  steady 
market — and,  in  a  corresponding  degree,  re 
duce  the  relative  number  of  grain-growers,  now 
oppressively  redundant,  and  enhance  the 
value  of  their  productions.  2d.  Increase  the 
duty  on  imported  spirits,  so  as  to  make  it  the 
interest  of  our  people,  as  it  should  be  their  in 
clination  and  pride,  to  consume  less  of  foreign, 
and  consequently  more  of  our  domestic  liquors 
distilled  from  grain. 

The  foreign  demand  for  our  breadstuffs  has, 
since  1818,  not  only  been  very  limited,  but  in 
juriously  precarious  and  fluctuating.  The  en 
forcement  of  "the  corn  laws,"  virtually  inter 
dicts  the  sale  of  our  corn  and  flour  in  England; 
and  by  her  recent  policy  England  menaces  the 
occlusion  of  her  colonial  ports  against  the  ad 
mission  of  our  vegetable  products.  Before  the 
colonial  interdict  (viz:)  in  1825,  the  exports  of 
flour  from  the  United  States  to  all  the  British 
colonies  did  not  exceed  223,000  barrels, — 
none  could  be  sold  in  Enyland!  During  the 
same  year,  our  grain  growing  population 
bought  of  England  manufactured  articles  to 
the  amount  of  $7,500,000!  And  it  should  not 
be  forgotten,  that  in  the  same  year,  the  New 
England  manufacturers  bought  and  consumed 
625,000  barrels  of  American  flour,  and  large 
quantities  of  our  corn.  Here  is  a  domestic 
market  already  opened  to  us,  100  per  cent,  bet 
ter  than  that  of  England,  before  her  new  co 
lonial  system  was  announced,  and  this  market 
is  created  by  the  growth  of  American  manu 
factories  under  the  genial  and  vivifying  influ 
ence  of  "a  judicious  tariff."  This  is  an  impor 
tant  fact,  when  it  is  recollected  that  the  grazing 
and  grain  growing  states  contain  about  three- 
fourths  of  the  population  of  the  United  States. 

In  1793  our  entire  population  was  about  4,- 
500,000;  in  1824  it  was  12,000,000.  Yet  in  the 
former  year  the  v:uue  of  our  animal  and  veg 
etable  exports  exceeded  that  of  the  latter  year 
—thus:  1793,  1,074,639  barrels  of  flour;  1824, 
996,702  ban-elf  of  flour,  75,106  barrels  of  beef, 
and  38,563  barrels  of  pork.  In  1824,  66,074 
ban-els  of  beef  and  6  7,229  pork.  In  1791-2-3, 
we  exported  373,352  tierces  of  rice,  and  in 
1822-3-4,  only  301,683  tierces.  The  money 
value  of  the  foregoing  exports  in  1793  exceed 
ed  that  of  1 824  as  100  to  50.  The  value  of  ex 


ports  was  not  given  at  the  treasury  before 
1803,  since  which,  we  are  enabled  by  the 
treasury  reports,  to  exhibit  the  following  tabu 
lar  contrast:  1803,  flour  exported  $9,300,000; 
1824,  flour  exported  $5,759,000;  1803,  beef  aud 
pork,  $4,125,000;  1824,  beef  and  pork  $2,628,- 
000.  The  intermediate  years  exhibit  a  ratio 
of  progressive  deterioration  in  the  value  of  our 
exports,  while  our  population  has  in  the  mean 
time  increased  100  per  cent. 

The  foregoing  facts  are  sufficient  to  show 
the  consequences  of  depending  on  a  foreign 
market,  which  we  neither  control  nor  regulate: 
and  they  indicate  the  necessity  of  a  home  mar 
ket,  stable  and  sure.  "We  should  not  depend, 
as  much  as  we  havo  done,  on  foreign  caprice 
and  British  legislation.  We  should  buy  more 
from  our  own  citizens,  and  that  will  enable 
them  to  buy  more  of  us  in  return.  This  kind 
of  interchange  will  be  mutually  advantage 
ous.  It  will  make  us  feel  (what  we  really  are, 
or  should  be,)  as  one  people;  and  will  promote 
our  prosperity  and  real  independence. 

The  capacity  of  the  United  States  to  supply 
their  own  market  with  iron,  is  indisputable. 
Iron  ore  is  abundant  in  the  east,  west,  north 
and  south,  and  immense  quantities  of  it  are 
useless,  for  want  of  a  demand,  whilst  we  im 
port  largely  from  abroad.  The  convention, 
therefore, — influenced  by  the  same  doctrine 
which  governed  all  its  determinations,  (viz) 
that  when  we  can  supply  the  raw  material  our 
selves,  we  should  also  supply  the  manufac  - 
tured  the  article,  in  all  grades,  even  to  its 
highest  elaboration, — recommended  a  slight 
additional  duty  on  foreign  iron  and  steel.  If 
this  duty  should  be  imposed,  and  have  its  con 
templated  effect,  it  will  augment  our  intrinsic 
resources  in  peace  and  in  war,  and  in  a  short 
time  diminish  to  the  consumer  the  price  of  ar 
ticles  which  to  all  clasffcs  of  society  are  indis 
pensable. 

The  complete  and  signal  success  of  our 
manufactories  of  coarse  cottons,  and  the  con 
viction  resulting  from  satisfactory  information, 
that  the  like  protection  by  the  government, 
will  produce  the  like  success  to  the  efforts  novy 
making  to  manufacture  the  finer  cottons,  in 
fluenced  the  convention  to  ask  the  attention  of 
congress  to  this  branch  of  domestic  enterprise. 
We  can  now  buy  at  a  New  England  or  Penn 
sylvania  factory,  cotton  cloth  for  ten  cents  a 
yard,  of  finer  texture  and  more  durable  than 
the  imported  cotton,  which,  before  our  facto 
ries  existed,  cost  us  at  least  thirty  cents.  And 
we  can  now  buy  a  very  useful  article  of  Amer 
ican  manufacture,  to-wit,  good  casinetts,  for 
fifty  cents,  better  and  nicer  than  any  coarse 
British  cloth  at  &2.  Yet  we  know  that,  when 
the  last  duty  was  imposed  on  the  importation- 
of  coarse  cottons,  many  plausible  objections 
were  vehemently  and  honestly  urged  against 
it,  by  speculative  cosmo-politico*economists; 
such  as  the  following:  "Let  trade  regulate  it 
self — we  are  taxing  the  many  for  the  benefit  of 
a  favored  few — you  will  enhance  the  price  of 
the  manufactured  article — diminish  the  reve 
nue — encourage  monopoly."  But  the  experi- 


142 


TO  THE  PEOPLE  OF  KENTUCKY. 


ment  refutes  all  such  abstract  doctrines. 
"The  many"  have  been  benefitted  as  well  as 
"the  few" — the  price  to  the  consumer  has  been 
•wonderfully  diminished — there  has  been  no 
smuggling — and  the  revenue  has  been  augment 
ed.  These  objections  were  then  more  impos 
ing  than  now.  They  were  sustained  by  mu 
tilated  scraps  of  authority  from  Adam  Smith, 
Say,  and  Kicardo,  who  wrote  for  Europe,  and 
were  unfortunately  misapplied,  by  our  theo 
retic  politicians,  to  America.  But  if  there 
were  no  other  facts  to  shew  the  fallacy  of  these 
old-fashioned  abstractions  of  closet  econo 
mists,  (and  there  are  many  more)  the  cotton 
experiment  is  most  triumphant.  In  the  suc 
cess  of  that,  we  find  theory  overturned  by 
practice — and  speculative  opinions  refuted  by 
an  array  of  simple  facts  which  are  irresisti 
ble  in  the  confirmation  of  the  maxim  of  our 
Washingtons,  Hamiltons  and  Jeffersons,  ex 
pressed  in  the  following  oracular  language: — 
"When  a  domestic  manufacture  has  attained 
to  perfection,  and  has  -jagaged  in  the  prosecu 
tion  of  it,  a  competent  number  of  persons,  IT 
INVARIABLY  BECOMES  CHEAPER.  The 
internal  competition  which  takes  place,  soon 
does  away  everything  like  monopoly;  and  by 
degrees  reduces  the  price  of  the  article  to  the 
minimum  of  a  reasonable  profit  on  the  capi 
tal  employed.  This  accords  with  the  reason 
of  the  thing  and  with  experience." 

The  chief  object  of  the  convention,  and  that 
which  was,  more  than  any  other,  the  occasion 
of  its  meeting,  was  to  encourage  and  protect 
the  growth  and  manufacture  of  wool.  And 
the  result  was  an  unanimous  recommendation 
to  congress  of  the  following  rate  of  duties, 
viz:  on  all  foreign  wool  over  the  value  in  a  for 
eign  port  of  8  cents  per  pound,  a  duty  of  20 
cents  per  pound,  with  the  addition  annually  of 
2*'2  cents,  until  it  shall  leach  fifty  cents. 

On  the  woollen  goods  (with  the  exception  of 
worsteds  and  bombazetts,  flannels  and  blan 
kets,)  40  per  cent.,with  the  addition  of  5  per 
cent,  annually,  until  it  shall  reach  50  per  cent. 
— with  this  additional  qualification,  to-wit: 
that  in  estimating  the  ad  valorem,  all  woollens 
(subjected  to  the  above  duty)  of  less  value 
than  50  cents  the  square  yard,  are  to  be  valued 
at  50  cents;  those  between  50  cents  and  $2  50 
at  $2  50;  those  between  $2  50  and  $4  at  $4; 
and  those  between  $4  and  $5  at  $6. 

There  is  no  essential  difference  between  the 
rate  of  duties  here  recommended,  and  those 
proposed  in  the  Woollen's  bill  of  last  session 
of  congress,  except  in  the  article  of  wool.  W  e 
inclined  to  the  opinion  that  it  would  be  better 
to  invite  the  attention  of  congress  generally  to 
the  subject,  without  any  specific  recommenda 
tions.  But  a  large  majority  of  the  convention 
being  of  a  different  opinion,  and  insisting  that 
it  would  be  proper  to  suggest,  respectfully,  the 
rates  which  the  convention  deemed  most  suit 
able,  leaving  congress,  when  possessed  of  the 
advantage  of  such  suggestion,  to  adopt  such  a 
system  of  protection  as  its  superior  wisdom, 
on  a  more  extensive  survey  of  facts,  might  as 
certain  to  be  most  fitting,  we  concurred  cheer 


fully  in  uniting  in  the  entire  memorial  as  it 
was  presented.  To  such  as  may  say — "the 
rates  are  too  high" — we  reply,  congress  can 
make  them  lower;  and  to  such  as  may  insist 
that  the  subject  should  not  be  touched,  we  an 
swer:  we  shall  acquiesce,  veiy  cheerfully,  (as 
we  hope  all  others  will  do,)  in  whatever  course 
the  wisdom  and  patriotism  of  congress  shall 
finally  adopt.  We  did  not  expect  nor  desire 
that  our  opinions  should  have  more  than  their 
just  share  of  influence. 

In  regard  to  the  propriety  of  increasing  the 
duties  on  wool  and  woollens,  however,  there 
Were  some  prominent  considerations  influen 
cing  the  convention,  which  should  n<ot,  even  in 
this  imperfect  outline,  be  entirely  pretermit- 
ted. 

By  the  tariff  of  1824,  the  duty  on  foreign 
woollens  was  raised  from  25  to  33%  per  cent. 
This  was  found  necessary  to  sustain  the  labor 
and  capital  employed  in  the  woollen  manufac 
ture,  and  was  deemed  sufficient.  In  faith  of 
the  law  of  1824,  investments  were  made  by 
some  of  our  fellow-citizens  in  other  statea,  in 
buildings,  machinery  and  materials  for  wool 
en  manufacture  to  the  amount  of  at  least  $20,- 
000,000. 

These  investments  promised  to  be  produc 
tive  for  some  time,  and  no  doubt  would  have 
been,  if  they  could  have  been  protected  from 
the  disatsrous  effects  of  two  unforseeii  causes: 
1st.  The  distress  of  the  manufactures  in  Eng 
land  in  1826,  induced  them  to  export  large 
quantities  of  their  woollens  to  the  United 
States,  and  sell  them  at  reduced  prices,  to  avert 
the  ruin  which  hung  over  their  own  heads,  and 
vo  crush  our  rival  establishments,  so  as  to  keep 
open  the  usual  demand  in  this  countiy  for 
their  fabrics.  2d.  To  aid  in  relieving  their 
own  manufacturers,  and  in  prostrating  ours. 
England  reduced  the  duty  on  wool  to  be  im 
ported  for  their  manufactories,  from  6  pence 
sterling  per  pound,  to  one  penny,  and  on  the 
coarser  wool  of  less  value  thai)  one  shilling 
per  pound,  to  a  half  penny  per  pound!  and  on 
other  articles  to  be  imported  for  the  manufac 
ture  of  cloths,  there  were  corresponding  reduc- 
tien;  for  instance,  that  on  olive  oil  was  redu 
ced  from  £15  13s  the  ton  (252  gallons)  to  £7; 
on  rape  seed  from  £10  to  10s;  on  logwood  from 
9s  4d  sterling,  to  Is  6d;  and  on  indigo  there 
was  a  reduction  of  20  per  cent.  All  which 
were  estimated  to  reduce  the  cost  of  manufac 
turing  16%  per  cent.,  (viz:)  the  reduction  on 
wool  14% — and  that  on  the  other  articles  2 
per  cent.  The  avowed  object  of  these  reduc 
tions,  was  to  enable  the  British  manufacturer 
to  undersell  the  American,  in  our  own  market, 
and  thereby,  in  the  parliamentary  declaration 
in  favor  of  the  reductions,  open  to  England  in 
North  and  South  America,  "an  immense  mar 
ket  for  our  (English)  low  priced  cloths!"  And 
shall  this  announcement  be  prophetic?  It 
must  be  so  without  some  countervailing  regu 
lations  by  our  own  government.  The  British 
Parliament  has  virtually  reduced  our  duty  of 
33%  per  cent,  to  16%— more  than  one-half  less 
than  it  was  before  the  tariff  of  1624!  Theie 


TO  THE  PEOPLE  OP  KENTUCKY. 


143 


facts  speak  plainly.  There  is  nothing  specu 
lative  in  them.  They  are,  and  have  been  to 
us,  most  actively  practical.  Our  manufac 
tures  have  been  severely  stunned  by  their  op 
eration,  and  must  sink  under  the  blow,  un 
less  our  government  interpose,  and  resist  the 
assaults  of  the|British  Parliament,  by  secur 
ing  all  the  protection  promised  by  the  law  of 
1824,  which  Parliament  has  reduced,  and  in 
effect  more  than  repealed.  Shall  we  submit 
to  England,  as  her  colories,  or  shall  we  en 
force  our  own  legislation,  and  protect  from  for 
eign  aggression  our  own  capital  and  our  own 
industry;  and  from  ruin,  our  own  citizens? 
Shall  we  adhere  to  the  law  of  1824 — or  shall 
we  suffer  it  to  be  mocked  and  trifled  with  by 
England? 

Ihere  can  be  no  doubt  that  we  can  supply 
the  wool  for  all  the  cloth  necessary  for  our 
own  use — nor  can  it  be  seriously  questioned 
that  we  can,  with  the  advantage  of  security 
from  government,  in  a  short  time,  make  as 
good  cloths  as  any  ever  imported — and  afford 
to  sell  them  at  home,  much  cheaper  than  we 
can  buy  those  of  foreign  countries.  The  cot 
tons  will  prove  this,  without  the  trouble  of  an 
analysis  of  the  facts  which,  to  the  merely  spec 
ulative  mind,  would  make  so  obvious  a  result 
manifest.  The  parallelism  of  the  wollens  and 
cottons  is  obvious,  and  may  be  made  com 
plete. 

The  consumer  cannot  buy  in  Kentucky  a 
yard  of  London  cloth,  which  cost  $6  at  the 
manufactory,  for  less  than  $12.  This  dupli 
cation  of  price  is  produced  by  the  profits  of  in 
termediate  venders;  by  insurance,  transporta 
tion,  impost,  <fcc.  "And  thus  a  Kentuckian 
must  pay  $12  per  yard  for  the  honor  of  wear 
ing  a  British  coat;  for  it  is  confidently  be 
lieved  that,  with  adequate  protection,  Ameri 
can  manufacturers  could  be  able  in  a  very 
short  time,  to  sell  cloth  of  the  same  quality  as 
cheap  at  their  own  doors,  as  those  of  England 
can  in  the  mart  of  London  or  York.  And  if, 
instead  of  buying  at  half  price,  we  should 
give  even  more  for  an  American  than  an  Eng 
lish  coat,  would  it  not  in  the  end  be  a  saving, 
not  onlv  to  the  purchaser,  but  to  our  country? 
Would  it  not  be  better  to  buy  from  our  own 
neighbors,  who  will  buy  from  us,  than  of  Eng 
land  who  will  not  purchase  our  hemp,  or  whis 
ky,  or  flour,  or  corn?  Would  it  not  be  wis«r, 
to  provide  a  market  for  those  articles  at  home, 
than  to  have  none  at  all?  And  would  it  not 
be  more  profitable  and  patriotic  to  keep  our 
money  at  home,  than  to  send  it  abroad  to  "that 
bourne,  whence  no  traveler  returns?" 

The  number  of  sheep  in  the  U.  States  are 
estimated  at  18,000,000,  of  the  value,  at  $2 
each,  of  $36,000,000;  and  of  which  the  fleeces 
estimated  at  2_^>  Ibs  each,  and  at  the  price  of 
40  cents  per  pound,  would  be  worth  annually 
$18,000,000.  It  it  supposed  that  it  would  re 
quire  40,000,000  of  sheep,  to  supply  wool 
to  manufacture  the  wollens  necessary  for  the 
consumption  of  the  existing  population  of  the 
United  fetares,  if  no  foreign  woollens  were  in 
troduced  among  us. 

The  United  States,  in  climate,  soil,  and  to-j 


pography,  are  generally  well  adapted  to  the 
growing  of  wool — and  it  is  believed  that  no 
portion  of  them  is  more  eligible  for  this  pur 
pose  than  parts  of  Kentucky;  portions  of  which 
might,  by  raising  sheep,  be  made  productive, 
which  are  now  in  wilderness  and  waste.  If 
we  could  get  only  40  cents  a  pound  for  wool, 
our  agricultural  capital  would  be  rendered 
more  productive  than  it  otherwise  can  be,  by 
a  transfer  of  a  portion  of  it  to  the  raising  of 
sheep.  Wool,  which  readily  brought  $2  75 
during  and  shortly  after  the  war,  will  not  now 
command  more  than  50  cents.  Such  as  sold 
Tor  95  cents  and  18  cents  in  1826,  before  the  im 
pulse  given  by  the  Tariff  of  1824  was  checked 
by  the  selfish  policy  of  England,  is  now  dull 
at  50  cents  and  12}-^  cents.  And  for  want  of 
demand,  the  business  of  raising  sheep  is  rap 
idly  declining.  Without  some  stimulus  to  the 
domestic  manufacture  of  wollens,  there  will 
not  be  a  demand  sufficient  for  the  wool  now 
grown  in  the  United  States — so  that  even  a 
prohibitory  duty  on  foreign  wool  would  not 
benefit  the  owners  of  sheep  in  our  country, 
without  the  creation  of  a  more  extensive  home 
market.  The  rejection  of  the  Woolen's  bill  last 
winter  sunk  wool  more  than  25  percent.  This 
fact  is  well  authenticated. 

During  the  last  year,  there  were  about  60,- 
000  persons,  large  and  small,  employed  in 
woollen  manufactories  in  the  United  States. 
The  provisions  (to  be  bought  from  the  agricul 
turalists)  necessary  to  subsist  these  laborers, 
would  cost  at  least  $2,500,000 — which  is  about 
40  per  cent,  of  the  total  value  of  the  agricul 
tural  productions  exported  from  the  United 
States;  and  if  stimulated  by  a  domestic  mar 
ket  for  their  fabrics,  so  as.  to  have  full  employ 
ment,  they  would  purchase  (also  from  the  ag 
riculturalists)  wool  of  the  value  of  about 
$1,000,000 — 83  percent,  of  our  population  are 
agriculturalists,  and  the  market  even  now  fur 
nished  to  them  by  our  own  manufacturers  for 
provisions  and  raw  materials,  is  ten  times  as 
great  as  that  of  the  world  besides. 

The  woollens  imported  from  England  annu 
ally,  may  be  estimated  at  $10,000,000;  and 
from  the  grain  growing  and  grazing  popula 
tion  of  the  United  States,  England  will  not 
buy  of  their  horses,  cattle  and  brcadstuffs,  to 
the  value  of  one  cent!  The  balance  of  trade 
with  England  is  against  the  U.  States  at  least 
$10,000,000,  the  whole  value  of  the  woollen  im 
portations.  Whilst  the  United  States  enjoyed 
the  carrying  trade,  their  commerce  flourished. 
That  great  source  of  prosperity  is  now  closed 
against  us.  During  the  continental  wars,  the 
population  of  Europe,  absorbed  in  the  con 
cerns  of  armies  and  battles,  necessarily  neg 
lected,  in  a  considerable  degree,  the  employ 
ments  of  peaceful  life  and  productive  labor — 
hence  their  agriculture  declined,  and  they 
looked  to  us  for  a  sufficient  supply  of  such 
vegetable  articles  of  consumption  as  they  had 
not  the  leisure  or  the  means  to  produce.  Our 
agriculture  then  flourished,  and  our  farmers 
were  buoyant  with  hope,  and  prospered. 
Since  the  pacification  of  Europe,  its  people 
have  resumed  the  puruits  of  agriculture,  with 


144 


TO  THE  PEOPLE  OF  KENTUCKY. 


renovated  vigor  and  alacrity;  the  consequence 
of  which  is,  that  they  supply  their  wants  by 
the  cultivation  of  their  own  soil,  and  will  not 
purchase  from  us.  And  hence  our  agriculture 
has  been  gradually  declining,  and  our  farm 
ers  are  becoming  despondent.  In  1818  Eng 
land  interdicted  the  importation  of  our  bread- 
stuffs — and  she  determined,,  at  any  hazard,  to 
enforce  her  corn  laws.  She  begins  to  talk 
about  growing  tobacco.  She  invites  to  her 
ports  the  cotton  ofHayti,  free  of  duty,  whilst 
she  enforces  a  heavy  impost  burthen  on  that  of 
the  U.  States!  Indeed,  she  will  not  buy  cot 
ton  from  us  whenever  she  can  be  conveniently 
supplied  elsewhere. 

In  the  south  of  Europe — in  Germany — in 
Poland  and  in  Sweden,  tobacco  is  now  grown, 
and  may  be  produced  to  still  greater  extent. 
By  these  causes  and  others,  which  it  is  un 
necessary  to  enumerate,  our  vegetable  exports 
have  decreased  in  quantity  and  value,  and 
our  producers  and  exporters  have  suffered  se 
verely,  and  many  even  to  hopeless  bankrupt 
cy;  although  we  are  favored  with  a  better  soil 
and  form  of  government,  and  with  more  phys 
ical  resources  than  any  other  nation  on  ihe 
globe  We  want  a  home  market — and  a  greater 
diversification  and  distribution  of  labor. 
This  is  the  natural,  the  obvious,  and  as  the 
experience  of  the  world  undeniably  proves,  the 
only  sure  remedy  within  our  control.  We 
must  learn  to  depend  on  ourselves,  and  shake 
off  our  colonial  habits.  WQ  must,  do  as  Eng 
land,  as  Russia,  ae  Germany,  have  been  forced 
by  necessity  to  do;  and  as  France  is  learning 
to  do — protect  our  own  industry,  and  secure 
for  its  products  a  certain  and  steady  market. 
If  we  cannot,  or  will  not  do  this,  we  may,  with 
out  prophecy,  read  our  destiny  in  the  history 
of  Spain,  Portugal  and  Ireland,  who  have  fol 
lowed  the  popular  doctrine  of  anti-tariff  pol 
iticians,  blindly  and  perseveringly. 

No  nation  has  ever  been  long  prosperous, 
without  manufacturing  for  itself,  articles  of  ne 
cessity  in  peace,  and  of  valuable  uses  in  time 
of  war — and  all  other  fabrics  of  which  it  might, 
by  its  own  labor,  supply  the  chief  materials. 
All  history  proves  this,  and  it  also  shows  us 
the  important  fact,  that  manufactures  never 
flourish  and  maintain  their  ground,  without 
the  aid  and  protection  of  government.  Infant 
manufactories  pass  through  a  probationary  ort 
deal,  which  many  cannot  survive,  without  be 
ing  propped  and  nourished  by  the  fostering 
care  of  a  paternal  government.  They  seldom 
attain  vigor  and  maturity,  without  assurance 
of  safety  from  the  fluctuations  of  foreign  poli 
cy,  and  the  overwhelming  attacks  of  foreign 
power  and  capital.  And  when  they  survive 
the  dangers  incident  to  their  infancy — their 
improvements  in  skill  and  in  machinery,  their 
augmentation  of  capital  and  their  rivalry 
among  themselves,  have  never  failed,  and 
never  will  fail,  not  only  to  enable  them  to 
maintain  themselves,  but  to  reduce  their  fab 
rics  to  the  minimum  value,  which  is  always 
less  than  the  same  kind  of  fabrics,  when  im 
ported,  can  be  sold  for.  These  are  not  specu 
lations.  They  are  the  practical  lessons  of  all 


times  and  countries;  and  they  accord  with  the 
opinions  of  our  most  illustrious  statesmen,  liv 
ing  or  dead. 

It  is  not  expected  or  desired  by  the  rational 
friends  of  the  "American  System,"  that  man 
ufactures  should  ever  predominate  over  agri 
culture.  The  latter  is  the  basis  of  our  power 
and  prosperity,  and  should  ever  command  our 
supreme  regard.  But,  to  give  it  full  effect, 
manufactures  and  commerce  must  also  flour 
ish.  These  are  three  sisters,  whose  destinies 
are  indissoiubly  intertwined.  And  commerce 
and  manufactures  must  be  so  far  encouraged  as 
to  invigorate  and  reward  the  hands  of  agricul 
tural  industry.  That  manufactures  have  not 
been  thus  far  promoted,  it  is  believed  confi 
dently  a  fair  induction  of  recent  facts  will  de 
monstrate. 

Prohibition  is  not  contemplated  at  this  time. 
Tho  work  of  advancing  "part  passu,"  the 
three  leading  interests,  must  be  progressive,  to 
be  tolerable  or  successful.  Active,  and  even 
tually  successful  competition  in  the  fabrica 
tion  of  some  of  our  own  most  valuable  raw  ma 
terials,  into  such  articles  as  our  necessities 
requiro  and  our  habits  render  comfortable,  is 
all  that  it  would  be  prudent  now  to  attempt. 
If  we  should  feed,  why  should  we  not  endeav 
or  to  clothe  ourelves?  Why  should  we  disre 
gard  the  invitations,  and  waste  the  rich  boun 
ties  of  Heaven?  Why  not  make  a  prudent  use 
of  the  means  of  wealth  and  power  which  are 
strewed  over  our  land?  Why  not  develope, 
and  by  the  judicious  employment  of  machine 
power,  and  proper  distribution  of  labor  and 
capital,  multiply  our  resources  and  increase 
their  natural  productiveness?  England,  since 
the  age  of  Edward  the  III,  has  augmented  and 
sustained  her  vast  power,  by  manufactures. 
Many  raw  materials,  when  elaborated  by  her 
manufactories,  are  increased  in  value  ten, 
some  an  hundred  fold.  And  by  this  process, 
too,  she  gives  employment  to  thousands  of 
men,  women,  and  children,  who  could  not  oth 
erwise  exist  on  her  soil;  and  thus  she  makes 
many  good  and  productive  subjects,  who 
would,  without  this  great  resource,  be  idlers 
and  vagabonds.  Her  cotton  manufactories 
alone,  give  employment  to  more  than  500,000 
families,  averaging  at  least  four  persons  each, 
and  constituting  in  the  whole  upwards  of  2,- 
000,000  of  souls.  Out  of  raw  cotton,  costing 
her  only  $22,500,000— and  of  which  article 
she  docs  not  raise  a  pound;  she  produces  $180,- 
000,000;  whilst  the  United  States,  that  raise 
two-thirds  of  what  is  consumed  in  Europe,  and 
export  five-sixths  of  their  crops,  receive  there 
for  only  from  20  to  $25 ,000,000.  This  is  only 
one,  out  of  many  examples. 

The  extension  of  our  home  market,  by  mul 
tiplying  our  manufactories,  will  not  only  di 
rectly  promote  agriculture,  but  indirectly  it 
will  produce  a  more  extensive  effect  on  "the 
general  welfare."  It  will  cause  the  improve 
ment  of  our  roads  and  rivers — the  construc 
tion  of  canals  and  railways,  which  will  facili 
tate  our  inter- communication,  strengthen  our 
sympathies  as  one  people,  engaged  in  one 
common  cause,  and  thus  tend  to  cemtnt  the 


TO  THE  PEOPLE  OF  KENTUCKY. 


145 


discordant  and  erratic  elements  of  the  Union, 
into  one  indissoluble  fraternity.  For  this  ob 
ject,  and  to  this  extent  only,  we  desire  to  cher 
ish  manufactures.  We  would  not  blindly  fol 
low  the  example  of  England.  We  are  essen 
tially  agricultural.  And  it  is  our  interest 
and  should  ever  be  our  pride  to  retain  so  en 
viable  a  pre-eminence.  To  aid  in  doing  this, 
was  the  object  of  the  convention,  and  they 
have  ventured  to  suggest  humbly,  the  meas 
ures  which,  in  their  opinion,  are  best  suited  to 
accomplish  the  desirable  end.  All  acknowl 
edge  that  some  remedy  for  the  agricultural  dis 
tress,  which  is  seen,  and  felt,  and  heard  in 
every  neighborhood  of  the  middle  and  west 
ern  states,  is  indispensable.  The  convention 
have  recommended  that  which  they  honestly 
hope  will  be  most  efficacious  and  least  excep 
tionable.  And  they  would  venture  their  re 
putations  on  its  signal  success,  if  it  is  permit 
ted  to  make  a  fair  experiment. 

It  is  not  local;  all  parts  of  the  Union,  if  not 
equally  profited  by  its  immediate  effects,  will 
eventually  derive  a  common  benefit  from 


such  protection,  of  such  an  article,  object  to  a 
duty  of  30,  40,  or  even  50  per  cent  on  wool  and 
woollens;  whereby  the  latter  article,  of  indis 
pensable  necessity,  will,  in  time,  be  rendered 
cheaper  to  them,  and  improve  the  market  for 
their  own  peculiar  and  much  favored  pro 
ducts?  The  duties  proposed  by  the  convention 
will  not  injure  commerce,  nor  essentially  di 
minish  the  revenue.  The  coasting  trade,  aad 
that  in  the  small  articles  necessary  for  our 
manufactures,  which  we  cannot  produce,  and 
the  export  of  our  manufactures,  will  more  than 
equal  the  value,  fiscally  and  commercially,  of 
all  the  foreign  commerce  in  the  articles  to  be 
protected,  even  if  that  protection  should 
amount  to  a  prohibition.  But  prohibition  is 
not  intended  or  expected.  The  manufactures 
exported,  in  1826,  exclusive  of  gold  and  sil 
ver,  amounted  to  5,595,130  dollars;  exceeding 
the  export  of  tobacco  1,000,000  dollars,  and  all 
other  vegetable  and  animal  exports  800,000 
dollars. 

Nor  will  the  measures  proposed  materially 
affect  the  foreign  market  for  the  cotton  of  the 


its    success,   and    none  more  than  the  west.  I  south,  except  so  for  as  it  will  be  improved  by 


And  the  south  will  soon  feel  its  beneficent 
operation,  not  only  in  the  general  prosperity, 
but  in  some  peculiar  benefits.  They  will 
find  a  steady  and  profitable  demand  in  Amer 
ica,  for  their  cotton,  and  rice,  and  indigo,  or 
for  greater  quantities  of  them  than  have  yet 
found  so  advantageous  a  market.  They  will 
be  able,  very  soon,  to  buy  their  cotton  bagging 
from  Kentucky  cheaper  to  them  than  from 
Scotland,  and  better; — American  casinetts  and 
linseys  will  be  cheaper,  and  suit  their  black 
population  better  than  coarse  imported  cloth. 
And  this  is  the  opinion  of  many  of  the  most 
enlightened,  patriotic,  and  liberal  men  of  the 
south.  The  following  is  the  language  of 
one  of  them:  "There  is  a  perfect  coincidence 
of  opinion  between  us  on  the  subject  of  protect 
ing  home  manufactures.  Bad  as  the  times 
are  for  cotton  planters,  (of  which  I  am  one  in 
a  small  way)  they  would  be  much  worse,  but 
for  the  demand  of  our  manufactories  for  the 
raw  article.  I  should  like  to  see  more  effectu 
al  protection  extended  to  the  growth  and  maii- 
ufactme  of  wool.  These,  and  such  like  meas 
ures  will,  in  time,  make  us  independent." 
The  lamented  Lowndes  entertained  the  same 
rational  and  liberal  sentiments. 

The  cotton  and  sugar  of  the  south  and  south-  'interest  at  stake,  give  assurance  that  she  will 
west  have  been  protected  by  a  duty  of  3  cents  [forego  party  pride,  and  old  prejudices,  and 
per  pound,  now  equal  to  about  50  per  cent,  i  seeing  her  common  interest  in  the  common 
ad  valorem.  These  articles  are  indispensable  j  cause,  will  acquiesce  cheerfully  and  co-ope- 
to  the  poor  as  well  as  rich,  especially  the  ar-  'rate  in  the  common  endeavor,  to  re-establish 
ticle  of  sugar.  The  poor  man  or  sick  woman  the  prosperity,  and  consolidate  the  happiness 
must  pay  three  dollars  on  a  hundred  pounds  of  our  common  country.  Except  in  gardens, 
more,  in  consequence  of  the  protection  extend-  cotton  was  not  raised  in  the  United  States  be- 
ed  to  the  home  manufacture  of  sugar.  And  fore  1789;  since  which  time  the  quantity  pro- 
this  is  indirectly  a  bounty  of  1G  dollars  to  eve-  duced  has  increased  to  an  astonishing  degree, 
ry  individual  of  the  entire  population  of  Lou-  To  show  the  rate  of  progressive  increase  in  the 
isiana.  The  whole  quantity  consumed  in  the  ]  production,  the  two  last  years  only  will  be  se- 
United  States  may  be  safely  estimated  at  lected.  In  1825  the  estimated  quantity  was 
12J,000,000,  of  which  about  76,000,000  are  irn-  550,000  bales.  In  1826  it  was  750,000.  85,- 
ported.  The  duty  on  the  latter  is  about  $2,-  000,000  pounds  exported  in  1819  were  nearly 
300,000,  which  is  paid  by  the  consumers,  as  valuable  as  125,000,000  pounds  in  1820. 
Should  those  who  monopolize  the  benefits  of  And  in  1823,  173,000,000  sold  for  $1,500,000 
19 


reducing  our  exports  of  that  article.  England 
will  buy  our  cotten  when  she  needs  it,  and 
cannot  buy  a  sufficient  quantity  from  the  In- 
dias,  Egypt  or  Hayti,  at  the  same  price;  for 
necessity  is  a  law,  even  to  her.  If  she  can  be 
advantageously  supplied  elsewhere,  she  will 
not  buy  our  cotton,  whether  the  proposed  tar 
iff  be  adopted  or  not.  Greece  and  her  islands 
are  more  suitably  adapted,  in  soil  and  climate, 
to  the  culture  of  cotton,  than  any  portion  of 
North  America.  Whenever  peace  and  securi 
ty  shall  be  established  in  those  delightful  re 
gions,  the  Greeks  will  grow  more,  and  better, 
and  cheaper  cotton,  than  we  can  or  will  raise. 
And  there  is  no  doubt  that  the  Mediterranean 
can  supply  all  Europe  with  raw  cotton.  Late 
signs  are  auspicious  of  the  partial  emancipa 
tion  of  Greece.  Whenever  this  shall  come, 
England  will  find  the  means  of  supplying  her 
manufactories  with  cotton,  and  will  not  fail  to 
do  it.  , 

Will  not  the  south  see  these  things,  and 
consent  to  prepare  for  the  crisis,  by  submit 
ting  to  the  only  expedient  which,  in  our  opin 
ion,  can  alleviate  the  distress  of  the  times,  and 
avert  the  impending  danger!  Her  ancient  pa 
triotism,  her  acknowledged  sagacity,  her  deep 


14ft 


TO  THE  PEOPLE  OP  KENTUCKY. 


less  than  142,000,000  pounds  did  in  1824. 
These  facts  shew  the  fluctuations  and  uncer 
tainty  of  the  foreign  demand,  and  that  the  de 
mand  may  be  now,  and  often  is  exceeded  by 
the  supply.  What  will  follow  when  Greece 
and  the  Archipelago  engage  in  the  produc 
tion  of  cotton?  It  is  believed  that  the  Amer 
ican  factories  will  shortly  consume  40,000 
bales  of  American  cotton,  of  which  12,000 
bales  will  be  manufactured  for  foreign  mar 
kets.  Even  now,  large  quantities  of  Ameri 
can  coarse  cotton  goods  are  exported,  and  sold 
profitably.  Stop  the  American  cotton  facto 
ries,  and  the  price  of  raw  cotton  must  fall, 
nearly,  if  not  quite  20  per  cent.,  and  cotton 
goods  must  rise  in  more  than  a  correspondent 
ratio — and  'thus  make  a  double  loss  to  the 
American  people,  and  a  double  gain  to  for 
eigners." 

To  Kentucky,  exhausted  by  incessant 
drains  of  her  specie  to  the  East,  to  buy  dry 
goods,  and  to  the  West,  and  North,  and  South, 
to  buy  land,  and  cut  off  from  a  profitable 
foreign  market,  the  proposed  measures  of  re 
lief  cannot  be  otherwise  than  most  salutary. 
They  will  have  a  tendency  to  revive  our 
drooping  agriculture,  and  give  life  and  ani 
mation  to  our  villages.  They  will  stimulate, 
and  enable  us  to  improve  our  roads  and  our 
rivers,  and  draw  frrorn  our  earth  its  abundant 
resources.  On  the  rocks  of  the  Schuylkill, 
five  years  since  uninhabited,  manufactures 
have  reared  a  flourishing  village,  (Manayunk) 
containing  upwards  of  1500  manufacturers, 
moral,  industrious,  useful  and  happy  people. 
Similar  results  have  been  effected  by  similar 
means,  at  Lowell,  in  Massachusetts,  and  at 
Weare  and  Somersworth,  and  many  other 
places.  Such  improvements  are  always  the 
necessary  cause  or  effect  of  canals  or  turnpike 
roads— for  cheap,  sure  and  speedy  transporta 
tion  and  travel. 

The  foregoing  are  a  few  (and  only  a  few)  of 
the  considerations  which  prompted  the  recom 
mendation  of  the  Harrisburgh  Convention. 
We  have  neither  the  leisure  nor  the  inclina 
tion  to  enter  into  elaborate  argument  in  favor 
of  this  recommendation,  nor  a  minute  analysis 
of  the  facts  which  would  sustain  it.  By  or 
der  of  the  convention,  an  address  to  the  people 
of  the  United  States  is  in  preparation,  and  will 
shortly  appear.  This  will  be  full,  and,  we 
hope,  satisfactory.  We  will  endeavor  to  lay 
it  before  you  as  soon  as  it  shall  be  published. 
We  had  hoped  that  its  earlier  appearance 
would  have  rendered  this  hasty  and  imperfect 
address  unnecessary.  But  as  we  have  been 
disappointed  in  this,  we  feel  it  out  duty  to 
submit  to  you  this  immethodical  statement  of 
gome  of  the  statistical  facts,  which,  with  oth 
ers,  influenced  our  opinions,  and  which,  we 
trust,  will  not  be  without  their  effect  on  yours, 
when  you  examine  them  carefully  and  make 
right  deductions  from  them. 

The  recommendation  is  liberal  and  nation 
al.  We  have  reason  to  expect  that  the  East 
ern  members  of  Congress  will  generally  favor 
the  whole  system,  and  if  the  western  and  mid 


dle  states  co-operate  through  their  delegations, 
the  objects  recommended  will  all  be  effected. 
Some  of  the  members  from  Pennsylvania,  and 
no  doubt  some  of  those  from  Kentucky,  voted 
against  the  Woollen's  bill  last  winter,  because 
it  did  not  embrace  some  of  the  other  subjects 
noticed  by  the  convention.  We  should  be 
pleased  to  see  all  these  interests  united  in  one 
fate,  and  triumph  together;  but  if  all  cannot 
enlist,  in  their  favor,  the  support  of  a  majori 
ty— GIVE  US  A  PART.  We  are  deeply  in 
terested  in  each  branch,  although  our  interest 
is  more  direct  and  immediate  in  some  than  in 
others.  And  if  we  can  only  sustain  one  now, 
that  success  will  enable  us,  by  its  effects,  the 
sooner  and  more  certainly  to  gain  all  the  oth 
er  objects  which  they  have  solicited.  But  if 
all  fail,  we  have  the  consolation  to  believe  that 
it  will  not  be  our  fault.  We  have  endeavored 
to  do  our  duty,  and  in  this  endeavor  we  have 
been  animated  by  no  other  motive  than  an 
honest  zeal  for  the  welfare  of  our  state  and  our 
nation.  There  are  many  honest  men  who  do 
not  concur  with  us  in  opinion  on  this  subject. 
If  our  opponents  are  in  the  majority,  we  shall 
quietly  yield  and  patiently  wait  for  the  cur 
rent  of  events  to  operate  on  the  reason  of  the 
people^  But  if,  as  we  believe,  the  convention 
are  engaged  in  the  cause  of  the  people,  we  only 
ask,  from  our  adversaries,  the  same  temper  of 
patient  resignation.  Our  cause  is  the  cause  of 
our  country,  and  must  prevail.  We  only  ask 
for  ourselves  the  charity  which  we  are  willing 
to  manifest  for  those  who  oppose  us.  We 
know  that  the  subject  is  a  delicate  one,  and 
well  calculated  to  produce  diversity  of  opin 
ion  among  speculative  men.  Theory  has  been 
long  tried.  We  invite  attention  to  the  prac 
tical  lessons  which  are  pressed  on  our  atten 
tion  by  our  own  history. 

All  except  the  few  who  denv  the  power  to 
protect  manufactures  by  legislation,  profess  to 
be  in  favor  of  a  "judicious  tariff."  What  is 
judicious  at  one  time  may  be  injudicious  at 
another.  What  may  suit  one  country  may  not 
be  adapted  to  the  circumstances  of  another. 
But  the  time  has,  incur  opinion,  arrived,  when 
hemp  and  flax,  and  their  manufactures — 
Grain — Iron,'  and  Wool  and  Woollens,  de 
mand  further  protection  in  the  United  States ; 
and  we  have  united  with  others  in  urging  their 
just  claims  to  public  consideration.  This  is 
what  we  call,  at  this  time,  and  in  this  coun 
try,  a  "judicious  tariff" — and  if  there  is  an  or 
ganized  party,  which  is  determined  to  oppose 
this  domestic  system  as  thus  presented,  and 
internal  improvement,  its  handmaid,  we  trust 
that  this  party  will  learn  that  this  is  the 
"American  System,"  well  approved  by  the 
American  people. 

Respectfully, 

G.  ROBERTSON, 
JOHN  HARVIE, 
JAMES  COWAN, 
R.  H.  CHINN. 


PRELECTION. 


On  the  18th  of  November,  1822,  Mr.  Robertson,  then  a  member  of  the 
Kentucky  Legislature,  after  having  resigned  his  seat  in  Congress,  of 
fered  to  the  members  of  the  Assembly,  convened  in  the  Representative 
chamber,  at  his  instance  chiefly,  resolutions  recommending  Henry  Clay 
for  President  of  the  United  States,  and  urged  their  adoption  by  a  speech 
which  has  not  been  preserved.  They  were  unanimously  adopted,  and  a 
committee  was  appointed  to  correspond  with  other  states  on  the  sub 
ject.  His  colleagues,  of  the  committee,  having  imposed  on  him  the  duty 
of  preparing  an  address  to  the  members  of  the  Legislature  of  Ohio,  he 
wrote  the  following  letter,  which  they  all  signed,  and  copies  of  which 
were  sent  to  the  leading  members  of  that  body,  and  were  responded  to 
by  the  vote  of  Ohio  for  Mr.  Clay.  This  wai  the  first  time  he  was  sup 
ported  for  the  Presidency.  He  was  then  in  the  46th  year  of  his  age; 
and  the  day  of  his  said  nomination  was  the  32d  anniversary  of  Mr.  Rob 
ertson's  birth. 

The  letter  to  Mr.  CLAY,  which  succeeds  that  to  the  citizens  of  Ohio,  is 
now  published  in  this  volume,  because  it  contains  some  evidence  of  per 
sonal  knowledge  on  a  subject  which  malice  had  made  unjustly  annoying 
to  Mr.  CLAY  and  his  friends:  and  the  address  by  the  people  of  Garrard 
follows  for  a  like  reason. 

The  salutatory  and  valedictory  addresses  which  follow,  are  deemed 
worthy  of  a  place  in  the  same  volume,  as  slightly  illustrative  of  the  char 
acter  and  fame  of  Mr.  CLAY.  The  first  was  delivered  on  the  9th  of  June, 
1842,  on  the  occasion  of  a  magnificent  festive  assemblage  of  more  than 
10,000  of  his  fellow-citizens,  male  and  female,  on  the  ground  now  used 
as  the  Fair  Ground,  near  Lexington,  convened  to  meet  Mr.  CLAY  on  his 
return  home,  after  resigning  his  seat  in  the  Senate.  And  the  last  was 
delivered  on  the  9th  of  July,  1852,  on  the  arrival  of  his  dead  body  in 
Lexington,  and  the  delivery  of  it  to  the  committee  of  reception,  by  the 
Senate's  committee,  who  attended  it  from  the  National  Capitol. 

And  it  was  thought  best  to  disregard  chronological  order,  and  group 
all  these  little  addresses  together.  As  connected  with  the  last  address, 
that  of  the  Chairman  of  the  Senatorial  Committee,  with  an  extract  from 
the  Observer  &  Reporter  of  the  14th  of  June,  are  also  here  re- published. 


TO  THE  LEGISLATURE  OF  OHIO- 


FRANKFORT,  Ky.,  November  20, 1822. 

At  a  joint  meeting  of  the  members  of  the 
two  Houses  of  the  General  Assembly  of  Ken 
tucky,  informally  convened  at  this  place  on 
the  18th  instant,  Henry  Clay  was  unanimous 
ly  recommended  to  the  people  of  the  United 
States,  as  a  proper  person  to  succeed  James 
Monroe  as  President  thereof,  by  a  resolution, 
an  enclosed  copy  of  which  we  take  the  liberty 
to  submit  to  you.  A  committee  of  correspon 
dence  was  also  at  the  same  time  appointed, 
composed  of  the  undersigned,  and  we  beg 
leave  now  to  address  you  on  this  occasion,  in 
di«charge  of  the  duty  thus  imposed. 

It  is  perhaps  a  source  of  deep  and  general 
regret,  that  there  is  not  any  mode,  perfectly 
unexceptionable,  of  collecting  and  proclaim 
ing  public  sentiment  on  the  very  important 
question  of  Presidential  succession.  Congres 
sional  caucuses,  which  have  been  generally 
used  as  the  organs  of  popular  opinion,  are  lia 
ble,  certainly,  to  many  and  serious  objections. 
The  substitution  of  the  state  legislatures,  al 
though  not  entirely  free  from  all  objection,  is 
not  so  obnoxious  to  public  reprehension  as 
any  other  mode  which  has  been  adopted  or 
devised. 

Some  one  or  more  of  the  gentlemen  in  the 
executive  department  at  Washington,  seem  to 
be  considered  ex-offieio  candidates  for  the 
Presidency.  In  regard,  therefore,  to  an  indi 
vidual  in  the  private  walks  of  life,  as  he  does 
not  challenge  public  attention  by  the  glare  or 
patronage  of  office,  if  it  be  thought  proper  to 
present  him  to  the  Union  as  a  fit  person  for 
the  chief  magistracy,  there  seems  to  be  a  pecu 
liar  propriety  in  bringing  him  forward  under 
the  auspices  of  respectable  portions  of  the 
community  at  large.  Difference  of  opinion 
may,  and  probably  does  exist,  as  to  the  most 
proper  time  when  this  should  be  done;  but  the 
members  of  the  general  assembly  of  Ken 
tucky  were  impressed  with  the  belief,  that  if, 
on  the  one  hand,  it  was  unadvisable  to  exhib 
it  a  premature  anxiety,  on  the  other,  it  was  im 
portant  that  there  should  not  be  a  culpable 
procrastination,  indicating  a  careless  indiffer 
ence  about  the  object. 

It  was  believed,  moreover,  that  if  they  per 
mitted  the  present  occasion  to  pass  without 
any  expression  of  their  wishes,  it  would  be 
too  late,  hereafter,  to  have  any  effect  on  the 
formation  of  the  general  sentiment. 

Indulging  the  hope  that  there  may  be  a  con 
currence  of  opinion  between  Ohio  and  Ken 
tucky  on  this  subject,  it  was  the  sincere  desire 
of  the  members  of  the  general  assembly  of  the 
Utter,  that  those  of  the  former  should  have 


preceded  them  in  the  declaration  of  their 
vishes.  But  as  the  session  of  the  legislature 
lere  will  terminate  probably  before  or  about 
the  commencement  of  yours,  it  was  not 
supposed  probable  that,  if  you  should  choose 
;o  make  any  expression  of  your  opinions, 
it  could  reach  here  prior  to  our  adjourn- 
nent;  and  therefore  it  was  not  deemed  proper 
longer  to  delay  the  adoption  of  the  enclosed 
resolution. 

It  will  be  extremely  gratifying  to  us,  if  the 
state  of  Ohio  should  coincide  and  co-operate 
with  that  of  Kentucky  on  this  interesting  sub 
ject.  The  weight  and  influence  to  which  your 
state  is  justly  entitled  from  her  position  in  the 
Union,  her  patriotism  and  her  population, 
must  and  should  give  to  anv  public  manifesta 
tion  of  her  opinions  and  wishes  on  any  sub 
ject,  but  more  especially  on  that  of  the  next 
Presidential  election,  a  most  controlling  and 
extensive  effect. 

Whilst  we  frankly  admit  the  possibility  of 
a  bias  on  our  part,  towards  a  fellow-citizen 
whom  we  have  long  and  intimately  known  in 
private  as  well  as  public  relations,  unless  We 
are  very  much  deceived,  the  many  pledges  he 
has  given  his  countrymen  of  a  capacity  and 
disposition  to  promote  the  general  welfare,  are 
as  notorious,  as  numerous  and  as  strong,  as 
any  which  have  been  furnished  by  either  of 
the  distinguished  individuals  towards  whom 
public  attention  is  now  directed.  It  is  not  our 
purpose,  nor  is  it  necessary  to  pronounce  an 
eulogium,  nor  to  dilate  upon,  or  even  enume 
rate  the  many  and  signal  services  which  he 
has  rendered  to  our  common  country.  They 
speak  for  themselves  in  a  most  emphatic  lan 
guage,  and  are  identified  with  the  most  im 
portant  transactions  of  the  Union  during  the 
last  fifteen  years.  "We  might  recall  your  re 
collection  to  the  impartial,  dignified,  and  uni 
versally  satisfactory  manner  in  which  he  pre 
sided,  for  a  series  of  years,  in  the  House  of  Re 
presentatives  of  the  United  States,  during  the 
hottest  contentions  of  party;  to  the  efficient 
and  distinguished  part  which  he  bora  in  the 
declaration  and  prosecution  of  the  late  war; 
to  his  agency  in  the  negotiation  of  peace,  and 
in  the  convention  of  London,  the  basis  of  all 
our  subsequent  foreign  connexions.  We  might 
remind  you  also  of  the  zeal  with  which  he  ever 
espoused  the  cause  of  internal  improvement, 
and  that  which  he  successfully  displayed  in 
the  extension  and  completion  of  the  Cumber 
land  road.  We  might  point  you  further  to  the 
deep  solicitude  he  exhibited  in  the  support  of 
home  manufactures,  so  essential  to  me  pros 
perity  of  the  United  States;  nor  can  the  friends 


TO  THE  LEGISLATURE  OF  OHIO. 


149 


of  liberty  ever  forget  the  ardent  and  intrepid 
perseverance  which  he  evinced  in  the  cause  of 
Spanish  America,  so  dear  to  every  "Western 
bosom.  Even  on  the  memorable  occasion  of 
the  proposed  restriction  on  Missouri,  although 
we  know  that  you  differed  from  us,  we  are  per 
suaded  that  you  will  be  ready  to  do  justice  to 
the  motives  by  which  (if  mistaken)  he  was 
animated,  of  preserving  the  constitution  from 
what  he  beli«ved  would  be  a  violation,  of 
maintaing  the  general  tranquility,  and  of  up- 


ble  countenance  nothing  can  be  achieved? 
There  can,  we  would  hope,  be  but  one  answer 
to  these  questions  in  the  West.  If  there  be  a 
coincidence  of  opinion  between  us  on  this 
subject,  and  also  as  to  the  person  who  should 
be  selected,  should  we  not  endeavoi,  by  all 
fair  and  honorable  means,  to  effect  the  common 
object? 

The  western  states  are  distant  from  the  seat 
of  the  general  government,  and  from  the  mass 
of  the  population  of  the  Eastern  states.  If 

holding  the  rights  of  the""  several  states  to  j  they  display  an  indifference  on  this  interest- 
judge  separately,  and  for  themselves,  on  that  I  ing  subject — if  they  fail  to  manifest  their 
delicate  and  difficult  question.  We  appre-  j  wishes  by  an  unequivocal  declaration  of  them, 
hend  that  no  mistake  could  be  greater  than  their  sentiments  may  be  unknown  or  rnisun- 
that  which  would  impute  to  him  the  wish  to  '  derstood,  and  their  weight  unfelt.  But  when 
extend  the  acknowledged  evils  of  slavery;  for  '  our  opinions  shall  be  known,  if  united,  we 
we  are  persuaded  that  no  one  entertains  a  1  have  every  reason,  from  our  attachment,  in- 
stronger  sense  of  its  mischiefs  than  he  does,  or  a  variably  displayed  toward  the  Union,  to  an- 
more  ardent  desire,  by  all  prudent  and  consti-  |  ticipate,  from  the  justice  and  magnanimity  of 
tutional  means,  to  extirpate  it  from  our  land,  the  other  parts  of  the  confederacy,  a  kind 
We  believe  that  it  is  his  deliberate  opinion,  and  favorable  hearing  and  a  just  decision, 
that  in  any  state,  in  which,  from  the  relative  For  the  purpose  of  drawing  the  attention  of 
proportion  of  the  slave  to  the  free  population, !  Ohio  to  this  subject  immediately,  and  of  solic- 
the  experimet  may  be  safely  made — a  gradual  \  iting  her  serious  examination  of  the  consider- 
emancipation  ought  to  be  encouraged  and  ef- 1  ations  which  we  have  herein  ventured  to  offer, 
fected.  And  some  of  us  happen  to  know  that,  j  we  have  thought  proper  to  address  you,  not  in 
more  than  twenty  years  ago,  when  the  present  I  your  official,  but  private  character,  hoping 
constitution  of  Kentucky  was  adopted,  con-  j  and  requesting  that  you  will  make  such  use  of 
ceiving  that  such  a  comparative  proportion  then  i  this  letter  as  your  good  sense  may  recommend 
existed  here,  he  exerted  himself  in  favor  of  a  j  as  most  proper  to  effect  the  object,  by  animat- 
gradual  abolition  of  slavery.  j  ing  Ohio,  if  possible,  to  an  immediate  co-oper- 


While  Mr.  Clay  has  employed,  in  the  nation 
al  councils,  his  best  exertions  to  advance  the 
general  weal,  he  has  not  been  an  inefficient  or 
careless  advocate  of  our  peculiar  interests  in 
the  West.  His  exertions  to  obtain  relief  to 
the  purchasers  of  the  public  lands,  in  conse 
quence  of  the  extraordinary  and  unforseen  em 
barrassment  of  the  times,  are  well  known. 
Many  years  'ago,  in  the  Senate,  he  yielded  his 
bestsupporttoa  measure,  having  for  its  object 
the  removal  of  the  obstruction,  at  the  falls,  to 
the  navigation  of  the  Ohio  river;  and  lately,  at 
his  instance,  an  appropriation  of  public  money 
was  made  to  explore,  by  skillful  engineers, 
that  river  and  the  Mississippi,  with  the  view 
to  the  improvement  of  their  navigation. 
When  abroad,  far  distant  from  us  all,  we  have 
much  reason  to  believe  that  he  made  every  ef 
fort  in  his  power  to  liberate  the  Mississippi  from 
an  odious  and  arrogant  pretension,  and  to  pre- 


ation  with  Kentucky  and  Missouri,  which 
has  made  a  similar  recommendation.  If  Ohio 
can  be  induced  to  act  in  unison  with  Ken 
tucky,  you  cannot  fail  to  see  the  great  impor 
tance  of  her  doing  it  without  delay.  Hoping 
that  you  will  receive  this  communication  in 
the  spirit  in  which  it  is  made,  and  that  you  will 
use  it  advantageously,  we  beg  leave  to  sub 
scribe  ourselves  your " 

Friends  and  Fellow-citizens, 

W.  T.  BARRY, 

R.  C.  ANDERSON, 

J.  CABELL  BRECKINBIDQE, 

J.  J.  CRITTENDEN, 

G.  ROBERTSON, 

JOHN  ROWAN, 

B.W.PATTON. 


British  traders  from  among  them.  He  has,  as 
far  as  we  have  understood,  uniformly  support 
ed  every  measure  in  Congress,  calculated  to 
increase  among  us  the  expenditure  of  public 
money  on  legitimate  national  objects,  and 
thereby  to  diminish  the  evil  of  an  unremitted 
drain  eastwardly,  of  the  circulating  medium. 

Is  it  desirable  to  have  a  Western  .President, 
who,  while  he  will  not  be  unmindful  of  his 
duty  to  the  whole,  is  well  acquainted  with 
our  peculiar  interests,  and  is  capable  of  an  ad 
vantageous  exhibition  of  them?  Is  it  desira 
ble  that  the  West  should  fairly  participate  in 
the  executive  government  of  the  Union — that 
initiatory  department,  without  whose  f  avora- 


OF 

RARD 


TO  A  GAR- 


At  a  Barbecue,  near  Lancaster,  on  the  4th  of 
July,  1827,  the  following  resolutions  were 
unanimously  adopted,  by  a  large  company  as 
sembled  from  different  neighborhoods,  in  the 
county  of  Garrard: 

Resolved,  That  as  a  testimony  of  the  confi 
dence  of  the  people  of  Garrard,  in  the  patriot 
ism,  talents,  and  integrity  of  their  distin 
guished  countryman,  Henry  Clay,  he  be  in 
vited  to  a  public  dinner,  to  be  given  him  at 
Lancaster,  at  such  time  as  may  be  most  con 
venient  to  him. 
.  Resolved,  That  George  Robertson,  Johu 


150 


INVITATION  OP  MR.  CLAY 


Yantis,  Elijah  Hyatt,  Robert  M'Connell,  Win. 
B.  Farrow,  Thomas  Kennedy,  Thomas  Millan, 
Simeon  H.  Anderson,  John  Rout,  Daniel 
O'Bannon,  John  Faulkner  and  John  B.  Jen 
nings,  be  appointed  a  committee  to  commu 
nicate  to  Mr.  Clay,  the  desire  of  the  people  of 
Garrard  to  welcome  him  to  their  simple  hos 
pitality,  in  thier  own  county. 

LANCASTER,  5th  July,  1827. 

Sm:- 

I  am  instructed  by  the  committee,  ap 
pointed  in  the  2d  of  the  enclosed  resolutions, 
to  invite  you  to  a  Public  Dinner,  proposed  to 
be  given  you  by  the  county  of  Garrard,  at 
whatever  time  shall  be  most  convenient  to 
yourself  during  your  sojourn  in  Kentucky;  and 
I  am  also  instructed  by  the  committre  to  as 
sure  you  of  their  individual  respect  and  undi- 
minished  confidence,  notwithstanding  the  cal 
umnies  of  factious  and  disappointed  men. 

Allow  me  to  add  that,  in  making  this  com 
munication,  it  is  peculiarly  gratifying  to  me, 
at  this  eventful  conjuncture  of  our  affairs,  local 
as  well  as  national,  to  be  the  organ  of  the  good 
wishes  for  your  welfare,  and  for  the  success  of 
your  cause,  which  are  felt  and  have  been  most 
""ly  manifested  by  my  county — a  county 


which,  if  distinguished  for  nothing  else,  has 
some  acknowledged  claims  to  a  good  name, 
for  the  constancy  and  disinterestedness,  and 
(/  will  say)  consequently,  the  general  recti 
tude  of  its  political  opinions;  and  my  gratifi 
cation  is  in  no  small  degree  increased,  by  the 
fitness  of  the  opportunity  which  this  occasion 
offers  me,  to  bear  my  humble  testimony  in 
your  behalf,  against  the  calumnious  charges 
of  Gen.  Jackson,  and  some  of  his  disappointed 
friends. 

Associated  with  you  for  years  in  a  public 
service,  then  full  of  peril  and  difficulty,  I 
have  ever  found,  in  your  political  conduct, 
unquestioned  purity  of  motive,  elevation  of 
sentiment,  undisguised  frankness,  and  invin 
cible  intrepidity.  But  these  claims  (strong 
and  undeniable  as  they  are)  to  the  approba 
tion  and  gratitude  of  your  country,  are  multi 
plied  and  enhanced  by  the  incidents  con 
nected  with  the  last  three  years  of  your  life. 

The  late  Presidential  election  placed  you  in 
a  situation  singularly  delicate  and  responsi 
ble.  Unawed  by  threats,  and  unseduced  by 
promises  or  hopes,  you  obeyed  the  dictates  of 
a  sound  mind  and  a  pure  conscience,  and  fear 
lessly  contributed,  bv  your  vote,  to  the  elec 
tion  of  an  individual  eminently  qualified  in 
every  way  for  the  high  trust — one  who  had 
served  his  country  at  home  and  abroad,  for 
forty  years,  faithfully  and  successfully — one 
who  enjoyed  the  confidence  and  friendship  of 
Washington,  Jefferson,  Madison  and  Monroe 
— one  who  concurs  with  you  in  the  policy 
best  adapted  to  promote  the  prosperity  and  en 
sure  the  union  and  harmony  of  these  states — 
who  cherishes  and  advocates,  and  will  encour 
age  to  the  limit  of  constitutional  power,  the 
American  system  of  roads  and  canals,  of  do 
mestic  industry,  and  of  a  diffusive  education — 
one  who  has  administered  the  government, 


thus  far,  in  a  manner  which  could  not  be  dis 
paraged  by  a  comparison  with  any  preceding 
administration — wno  is  national  and  liberal  in 
his  principles,  impartial  in  his  favors,  hon 
est  and  patriotic  in  all  his  purposes — who  was 
the  choice  of  a  large  majority  of  the  people  of 
the  United  States,  as  a  fair  induction  of  ac 
knowledged  facts  will  demonstrate — the 
choice  of  General  Jackson  himself  (next  to 
himself) — the  choice  of  your  own  district-— 
and,  as  I  have  never  doubted,  the  choice  (in 
preference  to  the  "Hero")  of  the  people  of 
Kentucky.  Your  knowledge  of  the  disparity 
of  the  rival  candidates,  in  fitness  for  so  high 
a  station — your  devotion  to  the  cause  of  inter 
nal  improvement  and  domestic  manufactures 
— your  regard  for  the  welfare  and  the  consti 
tution  of  your  country,  left  you  no  safe,  or  con 
sistent,  or  honorable  alternative.  Even  your 
enemies  cannot  deny,  that  theyhad  no  right  to 
expect,  from  a  knowledge  of  your  principles 
and  your  opinions,  that  you  would  vote  for 
Gen.  Jackson;  and  many  of  them  candidly  ad 
mit  that  you  could  not  have  done  so  consist 
ently.  And  if  you  had  suffered  yourself  to  be 
tempted  or  provoked  to  such  a  suicidal  and 
parricidal  act,  it  would  be  quite  easy  to 
show  that  you  could  not  have  made  him 
President.  I  have  personal  reasons,  too,  for 
knowing,  if  any  man  living  can  know,  that  in 
voting  for  Adams,  and  accepting  the  station 
you  now  hold  in  his  Cabinet,  your  motives 
were  pure  and  patriotic,  uninfluenced  by  any 
selfish  aim  or  expectation. 

I  never  doubted  that  you  would  act  as  you 
did.  I  never  doubted  that  the  vote  of  Ken 
tucky  would  not  be  given  to  Gen.  Jackson, 
under  any  circumstances :  or  that  the  votes  of  Il 
linois  and  Missouri  would  not  be  given  to  him, 
whatever  your  course  might  have  been.  And  for 
the  people  of  Kentucky,  I  will  say,  that  I  do 
not  believe  they  ever  were  in  favor  of  electing 
Gen.  Jackson  President  of  the  United  States — 
although,  in  his  famous  Harrodsburg  letter,  he 
intimatss  that  you  and  Mr.  Adams  are  corrupt, 
and  are  engaged  in  a  crusade  against  the 
people,  and  that  He  is  their  great  Atlas. 

Go  on  as  you  have  done — "be  just  and  fear 
not" — and  that  Government  which  is  the  best, 
and  that  administration  which  is  the  cheapest 
in  the  world,  will  continue  to  prosper  more 
and  more,  until  their  complete  triumph.  In 
ordinary  times,  it  would  not  be  proper,  or  con 
sistent  with  my  self-respect,  to  address  you 
in  a  style  so  unusual,  and  which,  by  some 
might  be  deemed  adulatory.  But  I  felt  it  due 
to  truth,  and  to  a  just  magnanimity,  recollect 
ing,  as  I  do,  that  our  public  'intercourse  and 
personal  acquaintance  commenced  under  cir 
cumstances  not  the  most  propitious  to  the  in 
terchange  of  kind  feelings  or  favorable  opin- 
ions.  Believing  that  the  same  intimate 
knowledge  which  I  have  acquired  of  your 
character,  by  long  and  scrutinizing  observa 
tion,  will  produce  the  same  effects  on  others 
that  I  am  nappy  to  avow  it  has  had  on  me,  I 
cherish  the  expectation  that,  ere  long,  many  of 
those  who,  from  prejudice  or  delusion,  are 
counted  your  enemies!  will  be  numbered 


GARRARD  ADDRESS  Off  PRESIDENTIAL  ELECTION. 


151 


among  your  friends,  and  feel  regret  and  sur 
prise  that  they  ever  doubted  the  integrity  of 
your  conduct. 

Accept,  sir,  for  my  colleagues  of  the  com 
mittee,  and  for  myself,  our  most  respectful  sal 


utations. 
Hon.H.  CLAY. 


G.  ROBERTSON". 


GARRARD    ADDRESS    ON    PRESIDEN 
TIAL  ELECTION. 

At  a  very  large  and  promiscuous  assem 
blage  of  the  citizens  of  Garrard  county,  at  the 
court  house,  on  the  19th  of  November,  1827, 
county  court  day  for  said  county,  Qen.  John 
Faulkner  being  appointed  chairman,  and  Jo 
seph  Hopper  secretary,  after  suitable  explana 
tions  of  the  objects  for  which  the  meeting  was 


organized,  the  followin 
tions  were  adopted  wit 


preamble  and  resolu- 
striking  unanimity, 


only  two  or  three  voting  in  the  negative: 

The  "Signs  of  the  Times"  are  visibly  por 
tentous. 

Upheld  by  the  virtue  and  intelligence  of  the 
people,  our  blessed  government,  essentially 
moral  in  its  structure,  has  passed  through 
many  trials  in  peace  and  in  war.  But  it  is 
not  indestructible.  Whenever  the  majority 
fail  to  exercise  the  reason  and  stern  virtue  ne 
cessary  to  the  conservation  of  such  a  moral 
system,  the  wreck  of  their  liberty  will  rebuke 
their  degeneracy,  when  it  may  be  too  late  for 
repentance  to  expiate  the  errors  of  the  past  or 
repair  their  ravages.  "Wise  men  feel  that  a 
fearful  crisis  is  now  before  us,  which  will, 
more  than  any  other,  try  the  principles  of 
the  people  and  fix  the  destiny  of  the  constitu 
tion. 

The  approaching  election  of  chief  magis 
trate  of  the  Union,  is  pregnant  with  either 
blessings  or  calamities,  which  will  bo  exten 
sively  felt  and  long  remembered. 

Involved  in  the  issue  is  safety  or  peril.  It 
will  subject  to  a  test,  novel  and  eventful, 
the  value  of  free  suffrage;  and  will  evince 
whether,  in  the  exercise  of  the  elective  fran 
chise,  reason  or  passion — -judgment  or  feeling, 
shall  predominate. 


be  preferred  for  civil  office  ?  Whether  the  prin  - 
ciples  consecrated  by  the  approved  adminis 
trations  of  Washington,  Jefferson,  Madison 
and  Monroe,  shall  be  upheld  or  trampled  down 
by  perilous  innovation?  Whether  the  "Amer 
ican  System"  shall  be  sustained  and  prudent 
ly  extended,  or  condemned  as  mischievous  and 
unconstitutional?  And  last,  "though  not 
least,"  whether,  by  sanctioning  the  unjust 
means  employed  to  degrade  and  supersede 
those  now  at  the  head  of  affairs,  an  example 
shall  be  set  which  will  encourage  the  indul 
gence  of  the  worst  passions,  and  render  the 
Presidential  election  in  future  the  occasion  of 
incessant  crimination  and  commotion,  apt  to 
result  in  the  triumph  of  force,  falsehood  and 
vice?  or  whether,  by  discountenancing  the 
premature  haste  and  rancorous  spirit  of  the  op 
position,  the  people  will  assert  their  own  dig 
nity,  and  show  that  the  canvass  shall  be,  as  it 
has  heretofore  been,  an  honorable  competionin 
a  decorous  appeal  to  the  intelligence  oi  freemen? 
These  vital  considerations  and  many  others, 
minor  and  consequential,  are  presented  in  the 
pending  controversy  between  Mr.  Adams  arid 
Gen  Jackson;  and  in  the  influence  which  they 
shall  be  found  to  have,  it  will  remain  to  be 
seen,  whether  we  shall  have  a  new  assurance 
of  the  stability  of  our  free  institutions,  or  a 
plain  indication  of  their  tendency  to  decay  and 
dissolution. 

The  political  doctrines  and  the  principles  of 
policy  foreign  and  domestic,  which  charac 
terise  the  general  tenor  of  the  administra 
tions  which  have  preceded  that  of  John 
Quincy  Adams,  and  under  the  operation  of 
which  our  government  has  attained  an  ele 
vated  rank  in  the  opinions  and  affections  of 
mankind,  are  hapily  exemplified  in  the  unu 
sual  degree  of  prosperity  which  is  daily  re 
sulting  from  the  wisdom  and  prudence  with 
which  his  administration  is  giving  more  exten 
sive  developments  of  their  soundness  and  ben 
eficence.  We  are  at  peace  with  the  whole 
world.  Our  treasury  is  ample.  We  pay  no 
taxes.  Our  country  is  steadily  progressing  in 
improvement,  physical  and  intelluctual.  The 
government,  so  far  as  the  President  is  respon 
sible,  is  administered  as  providently  and 
economically  as  it  ever  was  in  the  hey-day  of 
republican  simplicity.  No  citizen  is  oppress 


In  the  decision  of  this  important  issue,  the  edby  federal  authority;  and  we  only  feel  the 
people  are  called  on  to  determine,  not  merely  j  general  government  in  the  blessings  which  it 
what  individual  shall  fill  the  Executive  chair; 
this  is  personal  and  comparatively  immateri 
al.    But  they  must  incidentally  decide  other 
and    more    momentous     questions — such   as 


these — whether  the  President  shall  be  an  able 
and  experienced  statesman,  well-tried — or  a 
lucky  and  blazoned  warrior,  self-willed  and 
impetuous,  and  inexperienced  in  the  practice 
or  duties  of  the  office:  Whether  the  first  civ 
il  station  in  the  world  shall  be  conferred  for 
the  benefit  of  those  who  gave  it,  or  for  the  grat 
ification  of  him  who  asks  it?  Whether,  if  it 
shall  be  bestowed  as  the  rew;;rd  of  service,  it 
shall  be  a  just  tribute  to  the  distinguished  Ci 
vilian,  or  the  pension  of  the  raliant  Soldier? 
Whether  civil  or  military  pretengions  should 


confers. 

Since  his  induction,  Mr.  Adams  has  done 
nothing,  in  which  he  is  not  sustained  by  the 
example  or  opinion  of  all  his  predecessors  and 
by  the  authority  of  the  people  who  continued 
to  ratify  and  approve  for  thirty-six  years, 
measures  which,  when  attempted  by  him,  are 
denounced  by  Jackson  politicians  as  daring 
usurpations.  For  desiring  the  extension  ofthe 
Cumberland  Road  through  the  western  states, 
he  has  been  abused  for  encroachment  on  state 
rights.  For  favoring  the  protection,  to  a  pru 
dent  and  necessary  extent,  of  our  domestic  in 
dustry,  agricultural  and  manufacturing,  he 
has  been  j  charged  with  a  wanton  violation  of 
tho  constitution.  For  treating  our  South 


152 


GARRARD  ADDRESS  ON  PRESIDENTIAL  ELECTION. 


American  neighbors  respectfully,  he  has  incur 
red  the  imputation  of  a  design  to  unite  our 
destinies,with  theirs.  For  being  willing,  with 
the  majority  of  the  Commissioners  at  Ghent, 
to  continue  in  force  the  article  of  the  treaty  of 
'83,  in  relation  to  the  Mississippi,  the  people 
have  been  told  that  he  attempted  to  sell  the 
navigation  of  that  great  river.  When  the  op 
position  frustrated  the  colonial  negotiation  by 
espousing  the  side  of  England,  they  endeav 
ored  to  make  the  responsibility  of  the  failure 
recoil  on  him  and  his  cabinet.  All  his  acts 
are  misrepresented;  his  meaning  perverted;  his 
motives  questioned;  his  language  distorted, 
and  himself  falsely  charged  with  prodigality 
and  corruption.  Many  are  made  uneasy  with 


appointed  ambition,  have  been  deluded  almost 
to  fanaticism;  an4  seem  to  suppose  that  their 
liberty  is  in  danger,  unless  by  exalting  the 
idol  of  military  enthusiasm,  the  administra 
tion  can  be  revolutionized.  The  malcontents 
are  invited  to  the  standard  of  a  venerated  and 
laurelled  soldier,  valiant  and  glorious,  but  in 
every  other  respect  totally  unfit  for  the  cabinet, 
—a  soldier,  the  accidents  of  whose  eventful  life, 
public  and  private,  manifest  the  unreasonable 
ness  of  his  claims  to  the  civil  eminence,  to 
which,  unfortunately,  for  the  peace  of  the  coun 
try  and  for  his  own  posthumous  fame,  he  now 
aspires. 

It  is  not  because  he  is   well  qualified,   that 
his  leading  adherents  prefer  Gen.  Jackson  to 


visions  of  ^chimerical  danger — and  the  Arneri-  j  Mr.  Adams,  but  because  he  is  the  only  individ- 
can  people,  more  highly  favored  than  at  any  |ual  of  their  party  who  has  any  chance  to  suc- 


former  period,  arc  divided  into  two  anomalous 
parties,  in  which  all  ancient  badges  and  feel 
ing,  are  buried  in  the  all  absorbing  question — 
shall  Andrew  Jackson  and  his  partizans  be  el 
evated  to  supreme  power  on  the  ruins  of  Mi- 
Adams  and  Mr.  Clay?  So  acrimonious  are 
many  of  the  complainants,  that  they  emplpy 
all  the  resources  of  opprobious  epithets  and 
vulgar  defamation.  Such  rudeness  and  in 
justice  to  such  men,  are  not  only  inconsistent 
with  the  personal  respect  due  to  them  as  gen 
tlemen,  but  with  the  forbearance  which  their 
stations  should  exact;  and  are  ominous,  if  ap 
proved,  of  the  degradation  of  exalted  worth, 
and  of  official  dignity.  "If  such  things  are  done 


ceed.  His  civil  qualifications  are  not  only 
greatly  inferior  to  those  of  Mr  Adams,  but  cer 
tainly  very  unequal  to  those  of  many  of  his  own 
party.  But  it  was  not  the  fortune  of  any  of 
the  latter  to  command  at  Orleans;  the  acciden 
tal  circumstance  of  doing  which,  is'  the  sum 
total  of  the  General's  recommendations.— 
Without  this  event  no  human  being  would 
ever  have  thought  of  electing  him  to  the  Ex 
ecutive  Chair  of  theU.  States. 

This  his  partizans  know.  But  they  know 
too  the  spell  of  a  military  name  on  thepopular 
affections — and  that  it  covers  a  multitude  of 
glaring  defects:  and  hence  they  use  the  battle 
of  Orleans  alone,  as  the  talisman  for  effect- 


in  th«  green  tree,"  wh at  may  we  not  expect  "in  ing  their  contemplated  revolution.  The  8th 
the  dry?',  The  persecutors  of  either  of  these  I  of  January,  the  anniversary  of  Kentucky's 
honest^men,  may  be  earnestly  asked,  "wrhat  j  disgrace,  is  therefore  vociferated  as  if  it  en- 
evil  hath  he  done  you?"  The  answer  must  be,  j  titled  the  renowned  Hero  to  everything.  If 

occasion,  j  AndreAv  Jackson  has  any  other  than  martial 
claims  to  the  office  which  he  anxiously  seeks, 
let  his  friends  present  them.  There  has  been 


like  that  of  Aristicles  on   a   similar 
"thou  art  just." 

Before  Mr.  Adams  had  taken  the  oath  of  of 


fice,  a  party,  formidable  for  number-and  acci 
dental  influence,  composed  of  disaffected  and 
disappointed  men  of  discordant  feelings  and 
principles,  was  organized  for  the  avowed  pur 
pose  of  prostrating  him  and  Mr.  Clay,  and  de 
nouncing  their  conduct,  whatever  it  should 
be,  "right  or  wrong."  They  adopted  the  ap 
propriate  watch-words — "They  must  be  put 
down  if  they  are  as  pure  as  the  angels  at  the 
right  hand  of  God;"  and  true  to  their  pur 
pose,  they  have  left  no  means  untried  for 
effecting  their  unworthy  design.  Judged  by 
their  acts,  it  would  seem  that  their  first  max 
im  is,  "the  end  justifies  the  means."  They 
had  learned  from  history,  sacred  and  profane, 
that,  during  transient  paroxysms  of  popular 
excitement,  the  multitude,  roused  to  phrenzy 
by  the  arts  of  the  designing,  had  proscribed 
their  benefactors  and  most  virtuous  men. 
And  boldly  experimenting  on  the  credulity 


no  attempt  to  recommend  him  by  an  address  to 
the  understanding.  Every  effort  in  his  favor 
has  been  directed  to  the  passions.  This  alone 
is  an  admission  of  the  insufficiency  of  his  civil 
pretensions,  and,  with  rational  men,  should  be 
decisive. 

He  has  admitted  his  own  unfitness.  Not 
only  does  his  civil  history  show  that  he  never 
rose  above  the  grade  of  mediocrity,  but  he  has 
magnanimously  acknowledged  his  want  of 
qualifications  for  a  seat  in  Congress,  or  on  the 
judgment  Bench — and  is  he  who  is  unequal  to 
the  duties  of  these  comparatively  humble  pla 
ces,  competent  to  guide  the  affairs  of  a  whole 
nation?  If  it  be  intended  that  he  shall  be  on 
ly  the  nominal  President,  we  say  the  pension 
is  too  high,  and  the  hazard  too  great. 

The  most  memorable  act  of  the  General's  po 
litical  life,  is  the  vote  which  stands  against 
him  on  the  country's  record,  in  opposition  to 


and  presumed   aptitude  of  the  body  of    the   an  expression  of   approbation    by  Congress, 
people  to  believe  indefinite   charges  of  delin- 1  of  the  public  life  of  the  Father  of  his  Country, 


quency  against  men  high  in  office,  "the  Com 
bination"  have  endeavored  to  excite  public 
indignation  against  Mr.  Adams,  and  the  Se 
cretary  of  State  of  the  United  States,  by 
charges  as  false  as  they  are  foul.  By  a  dex 
terous  use  of  these,  many  honest  men,  unac 
quainted  with  tho  artifice  and  resource  of  dis- 


when  on  the  eve  of  retiring  forever  from  the 
public  service.  Washington  had  enemies,  and 
his  administration  too  met  with  opposition 
and  reproach. 

The  same  spirit  is  yet  alive,  and  instigates 
the  violent  outcry  against  the  present  admin 
istration.  Nothing  but  the  name  of  Washing- 


GARRARD  ADDRESS  ON  PRESIDENTIAL  ELECTION. 


153 


ington  saved  him  from  overthrow:  may  his 
example  save  those  who,  for  following  his  pre 
cepts,  are  subjected  to  the  same  persecution 
which  he  outlived. 

The  claims  of  the  Hero  of  Orleans  to  civil 
preferment  are  certainly  not  increased  by  this 
inexplicable  vote;  nor  by  the  contemptu 
ous  terms  in  which  he  ridiculed  Mr.  Madison's 
pretensions  to  the  presidency;  nor  by  his  threat 
to  chastise  a  Senator  in  the  Capitol,  for  en- 
.  quiring  into  his  public  conduct;  nor  by  the  in 
jury  which  he  recklessly  endeavored  to  inflict 
on  the  State  of  Kentucky,  by  unjustly  charg 
ing  her  volunteer  soldiers  with  "inglorious 
flight"  at  Orleans,  and  by  refusing  to  do  justice 
when  convicted  of  injustice;  nor  by  the  indeli 
cate  manner,  in  which  in  his  Harrodsburgh 
letter  he  meant  to  speak  of  Mr.  Adams  as  the 
enemy  of  the  people,  and  of  himself  as  their 
friend  and  candidate;  nor  by  his  artful  efforts 
to  destroy  the  reputations  of  Mr.  Adams  and 
Mr.  Clay,  by  insinuating  that  he  could  convict 
them  of  "bargain  and  management,"  when  his 
own  boasted  witness  acquits  them,  and  proves 
that,  if  there  was  any  tampering,  it  was  on  the 
General's  side. 

Next  to  the  8th  of  January,  with  which  some 
declaim  very  handsomely  who  were  opposed  to 
the  war,  the  friends  of  the  General  have  prof 
ited  most  by  asserting,  that  he  was  the  Peo 
ple's  President,  and  that  he  and  they  were 
corruptly  cheated  out  of  their  rights.  This 
has  beea  so  often  and  confidently  reiterated 
that  many  honest  men  believe  it,  and  for  this 
reason  alone,  incline  to  espouse  his  cause. 

That  he  was  not  the  object  of  a  majority  of 
the  people's  preference,  plain  facts  will  indis 
putably  prove  to  all  who  have  eyes  to  see  or 
ears  to  hear,  and  the  faculty  of  addition  and 
subtraction;  and  this  must  have  been  well  un 
derstood  by  those  who  gave  the  first  impulse  to 
this  wide  spread  delusion.     The  Gen.  was  not 
only  not  chosen  by  a  majority  of  the  people, 
but,  as  is  evident,  Mr.  Adams  received  a  large 
plurality  of  votes  given  by  the  people,  and 
would  have  gone  into  the  House  of  Represen 
tatives  with  a  correspondent  plurality  of  the 
electoral  votes,  had  the  majority  of  the  people 
of  each   state  controlled  the   whole  electoral 
vote  of  the  State,  and  had  not  Mr.  Adams  been 
the  victim  of  "intrigue,  bargain  and  manage 
ment.     Of  the  free  votes  represented  in    the 
electoral  colleges,  Mr.  Adams  had  about  4,000,- 
000,  and  Gen  Jackson  had  only  about  2,000,- 
000.    By  the  constitution  the  slave  states   are 
entitled  to  the  electoral  weight  of  3-5th  of  their 
slaves  who  do  not  vote:  add  these,  and  still  Mr 
Adams  has  a  decided  majority  over  the  Gener 
al's  number,  of  bond  and  free,  black  and  white 
But  in  some  States  where  Mr.  Adams  had  a  ma 
jority  of  the  whole  popular  vote,  the  Genera' 
obtained  a  majority  of  the  electors.     This  re 
suited  from  the  organization  of  the  districts. — 
And  in  some  other  states  where   Mr.  Adam 
was   stronger  than  any  other  candidate,  the 
friends  of  the  others  combined  on  the  General 
supposing  there  wa^no  danger  of  his  election 
Thus  this  candidate  of  the  people  received 
nominally,  99  electoral  votes  and  Mr.  Adam 
20 


nly  84 — when,  if  the  will  of  the  people  had 
een  consulted  Mr.  Adam's  vote  must  have 
>een  at  least  98,  and  that  of  his  competitor 
rot  more  than  85.  It  is  not  denied,  that  Mr. 
Drawford's  friends  preferred  Mr.  Adams  to  the 
General,  and  there  is  do  doubt,  that  a  niajori- 
y  of  Mr  Clay's  felt  the  same  preference. — 
leiice  it  is  evident,  that  Mr  Adams  was  pre- 
erred  to  Gen.  Jackson  by  an  overwhelming 
majority  of  the  American  people,  and  was, 
berefore,  the  people's  candidate. 

Equally  fallacious,  but  far  less  excusable,  is 
be  plea  of  "bargain"  in  the  election  by  the 
louse  of  Representatives.  This  is  a  second 
cPopish  Plot" — and  its  informer,  whoever  he 
nay  be,  a  second  Titus  Oates,  and  should 
neet  with  execration  in  common  with  those 
who  concocted  a  plot  so  diabolical.  They 
lave  the  hardihood  to  ask  honorable  men  to 
ccredit  the  imputed  corruption  of  distinguish  - 
d  citizens  who  have  been  their  country's 
iride  for  many  years,  and  to  degrade  them,  not 
nly  w ithout  proof,  but  against  the  proof  of  the 
accuser.  Gen.  Jackson  well  knew  that  Mr. 
Clay  could  neither  be  bribed  nor  awed  to  vote 
or  him — and  he  also  knew  that,  if  he  could  be 
guilty  of  such  a  suicidal  act  as  to  give  in  his 
adhesion  to  him,  he  could  not  have  elected 
lim.  The  General  with  Mr.  Clay's  assistance 
:ould  not  have  obtained  more  than  nine 
states,  and  Mr.  Adams  on  the  final  ballot 
must  have  had  at  least  15.  Therefore,  there 
was  nothing  to  be  gained  by  bargain,  and  no 
motive  to  enter  in  to  it.  Mr.  Clay  did  not  de 
sire  the  place  of  Secretary;  but  neither  his 
"riends  nor  his  enemies  allowed  him  to  refuse 
t.  Unable  to  induce  Mr.  Clay  to  enlist  under 
lie  military  banner,  the  disappointed  are  pro- 
Yoked  to  attempt  by  calumny  to)put  him  out  of 
;heir  way.  They  cannot  succeed  until  they 
3ut  him  down;  and  it  is  plain,  that  the  prime 
jbject  of  their  warfare  is  to  prostrate  Awn.  If 
ae  had  not  become  Secretary  of  State,  there 
would  either  have  been  no  combination,  or  if 
any,  it  would  have  been  of  a  character  very 
different  from  the  Jackson  party.  The  Gen 
eral  was  brought  out  first  as  a  candidate  for 
the  purpose  of  frustrating  Mr.  Clay's  prospects 
and  of  electing  Mr.  Adams,  who  was  the  Gen- 

ral's  first  choice  until  he  had  hopes  for  him 
self,  and  afterwards  his  second  choice.  And 
now  he  and  Mr.  Clay  are  hunted  down,  by  a 
party  whose  motto  is,  "Jackson  and  Reform," 
or  proscription  and  expulsion  of  all  who  will 
not  enlist  in  their  service. 

The  westis  obviously  and  peculiarly  inter 
ested  in  sustaining  this  administration.  Do 
we  desire  the  continuation  of  the  Cumberland 
Road,  commenced  under  the  auspices  of  Jef 
ferson,  and  the  opening  of  the  Chesapeake  and 
Ohio  Canal,  projected  by  the  benevolent  mind 
of  Washington?  And  do  we  wish  to  partici 
pate  in  the  incalculable  blessings,  political, 
commercial  and  fiscal,  which  these  great  im 
provements  would  produce?  Do  we  feel  the 
necessity  of  protection  to  domestic  manufac 
tures  and  to  our  agriculture?  The  opposition 
denounce  the  present  administration  for  favour 
ing  these  measures:  and  General  Jackson  has 


154 


GARRARD  ADDRESS  Otf  PRESIDENTIAL  ELECTION. 


not  found  it  convenient  to  disclose  his  opin 
ion  of  the  "American  System."  He  conceals 
it,  and  suffers  himself  to  be  declared  in  fa 
vour  of  the  system  where  it  is  popular,  and 
against  it  where  it  is  not  acceptable.  Let  him 
come  out  upon  this  subject  explicitly,  and  his 
hopes  of  election  will  be  blasted.  If  he  is 
friendly  to  the  system,  nothing  can  be  gained 
by  preferring  him.  to  an  abler  and  surer  friend. 
But  if,  as  almost  certain,  he  is  hostile  to  it, 
what  may  not  its  friends,  and  its  enemies  too, 
lose  by  his  success?  It  is  earnestly  to  be  de 
sired,  that  the  people  may  consider  this  sub 
ject  dispassionately,  and  act  wisely  and  pru 
dently,  regarding  measures,  not  men.  In  elect 
ing  Gen.  Jackson  there  is  great  peril — but  in 
re-electing  Mr.  Adams  there  is  safety.  He  is 
unexceptionably  moral;  he  is  a  plain  and  tem 
perate  republican;  he  is  fully  competent;  he  is 
the  man  of  whom  Washington  said  in  1797, 
that  he  was  the  most  useful  functionary  in  the 
foreign  service;  the  man  who  enjoyed  signal 
evidences  of  the  confidence  of  every  President 
of  the  United  States,  and  of  the  admiration  of 
General  Jackson  until  it  became  his  interest 
to  crush  him. 

By  approving  the  conduct  of  this  gifted  nnd 
much  wronged  citizen,  the  people  will  do  jus 
tice  to  him  and  to  themselves,  and  will  rescue 
the  country  from  the  consequences  of  electing 
a  General,  with  the  transient  apprehension  of 
whose  success  Mr.  Jefferson,  Mr.  Madison,  and 
other  patriarchs,  trembled  for  the  safety  of  the 
Republic. 

It  is  respectfully  submitted  to  the  patriotic 
and  considerate  among  those  who  disapprove 
the  leading  measures  of  Mr.  Adams'  adminis 
tration,  whether  they  reasonably  expect  any 
advantage,  by  electing  General  Jackson,  equal 
to  the  permanent  injury  which  such  an  event 
may  inflict. 

Military  renown  has  been  fatal  to  liberty. 
It  overran  the  freedom  of  Greece — of  Rome — 
and  of  every  other  republic  that  has  ever  suf 
fered  itself  to  be  spell  bound  by  its  fascina 
tions. 

Bonaparte  and  Csesar  won  more  battles  than 
General  Jackson  ever  achieved,  and  were  cer 
tainly  his  superiors  in  general  knowledge. — 
But  what  free  people  would  be  willing  to  con 
fide  their  destinies  to  such  rulers? 

Washington  was  "a  military  chief" — But 
there  has  been  only  one  Washington.  The 
name  of  our  dead  Washington  is  worth  more 
to  us,  than  all  the  living  Washington  »  in  the 
world.  He  was  not  only  "first  in  -war"  but 
"first  in  peace  and  first  in  the  hearts  of  his 
countrymen."  It  was  not  his  victories  in  the 
field,  but  his  victory  over  himself,  that  lifted 
Washington  above  all  other  men.  He  was 
honored  with  the  Chief  Magistracy  not  for 
being  a  successful  warrior,  but  for  possessing 
those  pre-eminent  moral  excellencies,  the 
known  destitution  of  which  is  an  insuperable 
objection  to  the  Hero  of  ]S"ew  Orleans 

We  delight  to  confer  appropriate  honor  on 
our  distinguished  Hero.  But  we  should  over 
leap  the  boundary  of  gratitude  and  prudence, 
by  making  him  President.  We  do  not  believe 


that  Gen  Jackson  would  wish  to  destroy  the 
liberty  of  his  country — nor  that,  if  he  should 
the  people  are  yet  prepared  for  such  a  catastro 
phe.  But  we  would  deplore  the  example,  as 
well  as  fear  many  of  the  consequences  imme 
diate  and  remote,  of  his  election  to  the  Presi 
dency;  and  deem  it  wise  to  profit  by  the  histo- 
tory  of  the  world,  and  avoid  the  rock  on  which 
the  liberty  of  past  generations  has  been 
wrecked. 

Wherefore,  Resolved,— -1st.  That  it  is  the 
duty  of  the  friends  of  order  and  good  govern 
ment,  to  employ  all  practicable  and  honourable 
means  to  promote  the  re-election  of  John  Q.  Ad 
ams;  that  we  approve,  as  preparatory  to  this 
end,  the  convention  proposed  to  be  held  at 
Frankfort,  on  the  17th  of  Dec.  next,  to  select  an 
electoral  ticket,  favourable  to  the  present  ad 
ministration,  and  that  Francis  P,  fiord,  Dan 
iel  Obannon,  Tyre  Harris,  Thomas  Kennedy, 
Benjamin  Mason,  Simeon  H.  Anderson  and 
Alander  Sneed,  be  appointed  Delegates  to  rep 
resent  us  in  that  convention. 


SPEECH  AT  CLAY  FESTIVAL. 

As  the  organ  of  the  neighbors  of  our  distin 
guished  countryman  and  guest,  to  whom  they 
have  dedicated  this  Kentucky  Festival  as  a 
tribute  of  their  respect  for  him  as  a  man  and 
of  their  gratitude  for  the  eminent  services  of 
his  long  and  eventful  public  life,  I  now  pro 
pose  a  crowning  sentiment,  which,  as  we  be 
lieve,  will  be  echoed  by  the  united  head  and 
heart  of  this  vast  multitude,  of  both  sezes, 
and  of  all  ages  and  denominations. 

We  have  assembled,  my  countrymen,  not 
to  worship  an  installed  idol,  nor  to  propitiate 
patronage  by  pouring  the  incense  of  flattery 
at  the  feet  of  official  power,  but  to  greet,  with 
heart  and  hand,  an  old  patriot  returned  to  the 
walks  of  private  life  with  a  consciousness  of 
having,  through  all  the  vicissitudes  of  incon 
stant  fortune,  always  endeavored  to  do  his 
whole  duty  to  his  whole  country,  and  with  the 
memory  also  of  deeds  of  which  the  proudest 
on  earth  might  well  be  proud.  [Oheeis.] 

By  the  good  and  wise  of  all  parties,  who 
feel  as  they  should  ever  feel,  such  an  occasion 
as  this  must  be  approved  as  the  offspring  of 
emotions  which  should  be  cherished  by  eve 
ry  enlightened  friend  of  his  country's  in 
stitutions,  and  by  every  disinterested  admirer 
of  the  noble  of  his  species.  We  should  honor 
those  who  honor  us.  Distinguished  services, 
by  whomsoever  rendered,  should  be  gratefully 
remembered,  and  exalted  talents  are  entitled 
to  universal  respect.  But,  wheat  one  of  our 
own  countrymen,  by  the  force  of  his  own  ge 
nius  and  virtues,  has  risen  from  poverty  and 
obscurity,  and  not  only  ennobled  his  own 
name  but  illustrated  that  of  his  country,  no 
personal  jealousy  or  political  prejudice  should 
chill  the  homage  of  that  country's  undivided 
heart.  And  when,  as  now,  we  behold  him, 
a  plain  citizen,  grown  grey  in  the  public  ser 
vice,  and  retired  to  hia  farm  to  hve  and  die 


SPEECH  AT  CLAY  FESTIVAL. 


155 


among  us,  what  Republican,  what  Kentuckian, 
can  rebuke  the  sympathy  and  respect  here  this 
day  manifested  towards  him,  in  a  manner  un 
exampled,  and  far  more  grateful  to  his  heart 
than  the  offer  of  the  highest  official  station  on  i 
earth?    On  such  a  day  and  at  such  a  place,  all,  j 
of  every  rank   and   name,   might  honorably  • 
unite  in   this  common   offering  of  cordial  re-  ; 
spect  for  a  fellow  citizen  whom,  perhaps,  we 
shall  never  again  see  and  hear  as  we  now  see 
and  shall  hear  him,  and  who  honors   us  as 
much    as  he  can   be  honored  by  us.     To  the 
thousands  here  present  the   scene  around  us 
is  peculiarly  imposing,  and   suggests  reflec 
tions  both  encouraging  and  ennobling. 

Not  more  than  half  a  century  has  elapsed 
sf  nee  the  Indian,  with  his  tomahawk,  lurked  in 
the  cane-brakes  of  our  pioneer  fathers.  With 
in  rather  leas  than  that  eventful  period,  a 
beardless  stranger  was,  for  the  first  time,  seen 
on  the  streets  of  the  then  little  Tillage  of  Lex 
ington1.  Like  Franklin  when  he  first  visited 
Philadelphia,  a  poor  and  friendless  orphan 
boy  had  left  his  native  Virginia  and  come  for 
lorn  to  this  land  of  promise,  to  seek  his  for 
tune  arid  fix  his  destiny.  He  leaned  alone  on 
Providence,  a  widowed  mother's  prayers,  and 
the  untutored  talents  with  which  God  had 
been  pleased  to  bless  him.  Those  prayers 
prevailed — and  that  Providence  and  those  tal 
ents  sustained  him  in  all  his  trials,  and  soon 
pointed  him  to  a  high  and  bright  career, 
which  none  but  the  good  and  great  can  ever 
run  with  honor  or  success.  That  career  he 
lias,  so  far,  run  with  a  lustre  unsurpassed. 
The  Forum  and  the  Senate  have  been  adorned 
and  exalted  by  the  graceful  displays  of  his 
rare  genius,  and  the  overwhelming  power  of 
his  Cemosthenian  eloquence.  His  name  is 
identified  with  the  forensic,  political,  and  di 
plomatic  history  of  the  United  States  for  the 
last  thirty-six  years;  and  his  mark  is  legible 
on  every  important  act  of  national  legislation 
or  American  policy,  which  has  been  either 
adopted  or  discussed  in  this  Union,  within 
that  period.  He  has  always  been  the  friend 
of  the  honest  laborer — the  champion  of  domes 
tic  industry,  and  a  sound  currency — the  ad 
vocate  of  equal  rights — and  the  defender  of 
the  constitution,  which,  though  excellent  as  it 
is,  might,  in  his  judgment,  still  be  improved 
by  the  prudent  modifications  of  experience. 
His  voice  has  been  heard  and  his  thunders 
felt,  in.  the  cause  of  civil  and  religious  liberty, 
in  every  clime.  And  always  and  every  where, 
the  Kentuckian  has  been  distinguished  for 
lofty  and  comprehensive  patriotism,  republi 
can  simplicity,  practical  wisdom,  and  self- 
sacrificing  independence.  The  whole  reading 
world  knows  and  admires  him  as  the  Ameri 
can  statesman  and  orator,  whose  moral  power 
and  self-devoting  patriotism,  more  than  once, 
saved  his  country  from  impending  ruin.  And 
when,  like  Washington,  he  determined  to  re 
tire  forever  from  the  theatre  of  public  action 
where  he  had  won  so  many  civic  victories  for 
his  country,  and  plucked  so  many  green  lau 
rels  for  his  own  head — when  he  resolved  to 
exchange  the  toils  and  troubles  of  public  life, 


for  the  repose  of  retirement,  the  verdant  lawns, 
the  roving  herds,  and  domestic  sweets  of  Ash 
land — when,  for  the  last  time,  he  stood  before 
the  Senate,  to  make  the  solemn  announcement, 
and  take  his  everlasting  leave, — not  an  eye 
was  dry — not  a  heart  unmoved;  and  let  his  po 
litical  opponents  say  what  they  may,  that 
parting  scene  was  felt  there,  and  here,  and 
everywhere,  as  the  separation  of  the  soul  from 
the  body.  [Great  cheering.] 

The  measure  of  his'  fame  is  now  full — and 
ripens  for  posterity. 

Thus,  while  the  infant  Kentucky  has  grown 
to  a  great  and  renowned  State,  and  the  small 
village  of  Lexington  to  a  beautiful  and  clas 
sic  city,  their  adopted  son  has  also  risen  to  an 
eminence  in  the  judgment  and  esteem  of  en 
lightened  men,  which  few  on  earth  have  yet 
attained,  or  can  ever  hope  to  reach;  and  now, 
surviving  almost  all  of  those  who  witnessed 
his  humble  advent,  he  reposes,  in  health  oi 
body  and  health  of  mind,  on  the  blooming  hon 
ors  of  a  political  patriarch.  And  here  we  may 
.11  behold  a  striking  and  beautiful  exemplifi- 
ation  of  the  hopeful  tendencies  of  our  free 
and  equal  institutions,  and  of  the  inestimable 
ralue  also  of  talents  faithfully  employed  and 
ightly  directed. 

Resisting  the  syren  voice  of  vulgar  ambi- 
ion,  Kentucky's  adopted  son  faithfully  served 
lis  country  for  that  country's  sake;  and  now, 
after  steering  the  constitution  from  the  whirl- 
300!  of  consolidation  on  the  one  side,  and 
lissolution  on  the  other,  the  Ulysses  of  Amer- 
ca  has  laid  aside  his  heary  armor,  and  com* 
lome  with  an  untarnished  shield.  He  wants 
10  Homer  to  exaggerate  or  embalm  his  deeds — 
Already  stereotyped,  they  will  tell,  in  all 
ime,  for  themselves,  without  the  aid  of  poe 
try  or  of  song. 

His  public  life  illustrates  the  difference  be 
tween  the  statesman  and  the  politician — be 
tween  the  enlightened  patriot  who  goes  for 
;he  welfare  and  honor  of  his  country,  in  defi 
ance  of  all  considerations  of  personal  ease  or 
aggrandizement,  and  the  seliish  demagogue, 
who,  always  feeling  the  people's  pulse  or  look 
ing  at  the  weathercock  of  the  popular  breath, 
counts,  as  the  chief  good  on  earth,  his  own 
exaltation,  by  any  means,  to  some  office  or 
trust]  which  he  is  not  qualified  to  fill  with 
honor  to  himself,  or  advantage  to  the  public. 
Whilst  a  swarming  tribe  of  selfish  placemen, 
and  vulgar  aspirants  after  ephemeral  popular 
ity,  like  common  birds,  have  been  skimming 
the  earth  and  amusing  the  people  with  their 
versatility,  their  colored  plumage,  and  their 
mock  notes — the  orphan  boy  of  Lexington — the 
self-made  man  of  America,  poised  on  eagle's 
pinions,  has  soared  to  the  pure  sky,  with  his 
eyes  fixed  on  the  sun — until  fatigued  at  last, 
by  his  airy  height,  he  has  rested  on  the  up 
lifted  arm  of  that  great  commonwealth,  which 
is  emphatically  styled  "the  land  of  the  free 
and  the  home  of  the  brave."  And  there,  on 
that  strong  right  arm,  let  him  rest  in  peace, 
until,  if  ever,  he  may  choose,  once  more,  to  try 
his  strength  in  the  loftier  and  less  peaceful 
scenes  of  political  life. 


156 


SPEECH  AT  CLAY  FESTIVAL. 


He  has  encountered  the  envy  and  obloquy 
inseparable  from  exalted  living  merit.  So  did 
Socrates,  and  Cicero,  and  even  our  own  God 
like  Washington — and  so  must  every  honest 
patriot,  who  lives  and  acts  for  his  country  and 
for  truth.  The  pathway  of  such  a  patriot 
will  erer  be  beset  with  the  Cleans  and  Clodii 
of  the  day.  But  remember  that  his  straight 
and  narrow  course  is  the  only  one  which  could 
secure  for  him  honorable  renown,  or  the  grate 
ful  remembrance  of  an  ;rge  to  come.  Such  has 
been  the  conduct,  such  the  aim,  and  such,  of 
course,  the  doom  of  our  distinguished  neigh 
bor  and  friend.  Ambitious,  we  know,  he  has 
always  been.  But  he  has  been  ambitious — 
not  of  office,  nor  of  fleeting  popularity — but  of 
that  sacred  fame  which  follows  and  hallows 
noble  deeds.  His  ambition,  totally  unlike 
that  of  the  unprincipled  egotist,  has  resem 
bled  rather  that  nobler  mould  of  Cato,  or  of 
Curtius.  And  this,  more  than  triumphal 
scene,  is  only  the  dawn  of  that  light  with 
which  time  and  the  approving  judgment  of 
mankind  will  encircle  his  name.  Already, 
this  day,  he  enjoys,  in  retirement,  a  reward 
which  no  earthly  place  or  title  could  ever  con 
fer. 

Men  will  differ  in  politics  as  in  other  things. 
But  let  them  honestly  differ,  like  Christians 
and  republicans,  in  a  spirit  of  toleration  and 
charity — and  not,  as  untamed  savages,  with 
the  brutal  ferocity  of  hungry  tigers.  When 
we  explore  his  whole  public  life,  the  unrelent 
ing  crusade,  so  spitefully  and  perscveringly 
prosecuted  by  some  leading  men  against  this 
venerable  and  unbending  statesman,  might  re 
mind  us  of  the  saying  of  Tacitus — that,  by 
murdering  Hdvidius,and  Thrasea,  and  Seneca, 
Nero  expected  to  cut  up  public  virtue  by  the 
roots.  Could  the  ostracism  or  ruin  of  such  a 
man  advance  the  glory  or  promote  the  happi 
ness  of  that  country  which  he  has  so  much 
honored  and  helped  to  save?  Faultless,  we 
admit,  he  has  not  always  been.  Who  on  earth 
ever  was,  or  will  ever.be?  But,  had  he  been 
even  perfect,  imperfect  men  would  either  not 
have  known,  or  knowing,  not  acknowledged 
it.  Blind  allegiance  to  party  is  not  only  the 
canker  of  liberty,  but  the  murderer  of  charac 
ter  also.  Those  who  look  through  the  micro 
scope,  of  a  party  or  a  faction,  instead  of  seeing 
for  themselves,  in  the  open  sunlight  of  heaven, 
will  never  behold  anything  as  it  is.  Many 
have  only  seen  our  guest  through  this  false 
medium:  and  they  cannot,  therefore,  know  or 
appreciate  his  true  character.  It  is  not  our 
purpose,  here,  or  elsewhere,  to  vouch  for  the 
rectitude  of  all  he  ever  did,  or  said,  or  thought. 
But  we  may  be  allowed  now  to  say  that  evi-n 
those,  whose  estimate  of  him  is  most  unfavora 
ble,  generally  concede  that  he  is  high  on  the 
roll  of  the  most  distinguished  men  of  the  age, 
and  acknowledge,  moreover,  that  he  has, 
through  a  long  public  life,  stood  steadfastly  by 
his  principles  and  maintained  them,  on  all  oc 
casions,  ably,  boldly,  and  manfully.  Let 
them  then  judge  him  by  the  golden  rule. 
k  But  whatever  maybe  thought  of  him  now,  or 
whatever  may  be  his  future  destiny  on  earth, 


his  posthumous  fame,  at  least,  is  secure. 
When  the  rival  passions,  which  have  assailed 
I  him,  shall  have  been  buried  at  his  tomb,  his 
I  character  as  a  patriot,  orator  and  statesman, 
I  will  shiue  forth,  clear  and  refulgent;  and  like 
I  the  setting  sun  of  a  stormy  day,  it  will  pass 
I  the  horizon  cloudless,  spotless,  and  full-orbed. 
[Great  applause.] 

Identified  with  his  country's  fortune,  his 
j  memory  will  live  in  the  history  of  that  coun- 
!  try's  glory — and  with  Washington's,  and  Ham 
|  ilton's,  and  Madison's,  Marshall's  and  Patrick 
I  Henry's,  it  will  be  embalmed  in  the  hearts  of 
i  the  virtuous  and  the  wise,  as  long  as  eminent 
I  talents,  signally  devoted  to  the  welfare  of  our 
'  race,  shall  be  revered  among  men. 

And,  in  some  future  age,  when  the  young 
Kentuckian,  with  curious  eye  and  palpitating 
heart,  shall  explore  the  Pantheon  of  illustri 
ous  Americans,  soon  attracted  by  the  most 
honored  group,  he  will  there  at  once  behold  a 
i  graceful  and  majestic  statue  of  granite,  and 
casting  an  anxious  glance  at  the  sculptured 
pedestal,  he  will  read,  with  unutterable  emo- 
:  tions  of  gratitude  and  pride — 

HENRY  CLAY,  OF  KENTUCKY. 
Without  detaining  you    longer,  I  will  an 
nounce  the  sentiment,  to  which  the  hearts  of 
millions,  now  and  for  ages,  will  approvingly 
respond. 

HENRY  GLAY— Farmer  of  Ashland— Pa 
triot  and  Philanthropist — the  AMERICAN  States- 
\man  and  Unrivalled  Orator  of  the  Age — illus- 
I  trious  abroad,  beloved  at  home.  In  a  long 
'career  of  eminent  public  service,  often,  like 
I  Aristidcs,  he  breasted  the  raging  storm  of  pas 
sion  and  delusion,  and  by  offering  himself  a 
sacrifice,  saved  the  Republic;  and  now,  like 
Cincinnatus  and  Washington,  having  volunta 
rily  retired  to  the  tranquil  walks  of  private 
!life,  the  grateful  hearts  of  his  countrymen 
will  do  him  ample  justice;  but,  come  what 
may,  Kentucky  will  stand  by  him,  and  still 
continue  to  cherish  and  defend,  as  her  own, 
the  fame  of  a  son  who  has  emblazoned  her  es 
cutcheon  with  immortal  renown. 


[From  the  Obsv.  &  Reporter,  14th  July,  1852.] 
BURIAL  OF  HENRY.  CLAY. 

Saturday  last,  the  10th  of  July,  was  a  day 
ever  to  be  remembered  in  our  city.  It  was 
the  day  consecrated  to  the  last  solemn  funeral 
rites  to  the  remains  of  our  illustrious  friend 
and  neighbor,  HKNRT  CLAY,  and  will  be  re 
membered  by  all  who  had  the  honor  of  partic 
ipating  in  the  mournful  exercises  of  the  occa 
sion,  not  only  because  of  the  consignment  then 
to  their  final  place  of  repose  of  the  remains  of 
our  great  fellow-citizen,  but  as  having  been 
the  occasion  of  a  larger  assemblage  of  people 
than  was  ever  before  congregated  in  the  limits 
of  our  city,  and  of  having  been  one  general 
scene  of  mourning  and  sorrow.  The  pageant 
was,  probably,  never  surpassed  on  any  similar 
occasion  in  the  United  States,  and  the  testirno- 
no  of  respect  and  affection  furnished  by  every 


BURIAL  OF  HENRY  CLAY. 


15  T 


outward  indication  was  such  as  no  man  save 
HENRY  CLAY  could  have  commanded. 

We  scarce  know  how  to  begin  a  description 
of  this  great  and  melancholy  occasion.  It  was 
such  a  display  as  we  are  not  in  the  habit  of 
witnessing  in  the  West,  and  the  like  of  which 
we  have  never  before  been  called  on  to  por 
tray.  Were  we  to  write  a  week,  we  could 
scarcely  begin  to  do  justice  to  the  subject,  and 
must  crave  the  charity  of  our  readers  for  fall 
ing  so  far  short  of  that  which  we  would  have 
liked  so  much  to  have  accomplished. 

On  Friday  evening,  the  committee  of  the 
Senate,  consisting  of  Messrs.  Underwood,  Cass, 
Houston,  Jones,  Fish  and  Stockton;  the  com 
mittee  appointed  by  our  citizens  to  escort  the 
remains,  accompanied  by  a  committee  from 
the  city  of  New  York,  a  committee  from  the 
citizens  of  Dayton,  Ohio,  the  'Clay  Guards'  of 
Cincinnati,  and  a  deputation  of  seventy-six 
young  men  from  Louisville,  together  with  sev 
eral  military  companies  from  the  latter  place- 
arrived  at  the  railroad  depot  in  this  city,  in 
charge  of  the  remains.  The  Hon.  JOSEPH  R. 
UNDERWOOD,  in  behalf  of  the  Senate's  commit 
tee,  there  addressed  the  committee  sent  from 
this  place  to  receive  the  remains,  in  a  few  feel 
ing  and  appropriate  remarks,  formally  sur 
rendering  their  precious  charge  to  the  care  of 
the  Lezington  committee.  His  address  was 
replied  toby  the  Hon.  GEORGE  ROBERTSON,  in  an 
eloquent  and  touching  manner..  We  are  grat 
ified  to  have  it  in  our  power  to  lay  before  our 
readers  the  remarks  of  both  gentlemen,  as  fol 
lows: 

JUDGE  UNDERWOOD'S  ADDRESS. 

Mr.  Chairman,  and  Gentlemen  of  the  Lexington 

Committee: 

Mr.  OLAY  desired  to  be  buried  in  the  Cem 
etery  of  your  city.  I  made  known  this  wish 
to  the  Senate  after  he  was  dead.  That  body, 
in  consideration  of  the  respect  entertained  for 
him,  and  his  long  and  eminent  public  ser 
vices,  appointed  a  committee  of  six  Senators 
to  attend  his  remains  to  this  place.  My  rela 
tions  to  Mr.  CLAY  as  his  colleague,  and  as  the 
mover  of  the  resolution,  induced  the  President 
of  the  Senate  to  appoint  me  the  Chairman  of 
the  Committee.  The  other  gentlemen  com 
prising  the  Committee  are  distinguished,  all 
of  them  for  eminent  civil  services,  each  having 
been  the  Executive  Head  of  a  State  or  Territo 
ry,  and  some  of  them  no  less  distinguished  for 
brilliant  military  achievements.  I  cannot 
permit  this  occasion  te  pass  without  an  ex 
pression  of  my  gratitude  to  each  member  of 
the  Senate's  Committee.  They  have,  to  testi 
fy  their  personal  respect  and  appreciation  of 
the  character,  private  and  public,  of  Mr.  CLAY, 
left  their  seats  in  the  Senate  for  a  time,  and 
honored  his  remains  by  conducting  them  to 
their  last  resting  place.  I  am  sure  that  you, 
gentlemen  of  the  Lexington  Committee,  and 
the  people  of  Kentucky,  will  ever  bear  my  as 
sociates  in  grateful  remembrance. 

Our  journey  since  we  left  Washington  has 
been  a  continued  procession.  Everywhere,  the 
people  have  pressed  forward  to  manifest  their 


feelings  toward  the  illustrious  dead.  Delega 
tions  from  cities,  towns  and  villages  have 
waited  on  us.  The  pure  and  the  lovely,  the 
mothers  and  daughters  of  the  land,  as  we 
passed,  covered  the  coffin  with  garlands  of 
flowers  and  bedewed  it  with  tears.  It  Las 
been  no  triumhpal  procession  in  honor  of  a 
living  man,  stimulated  by  hopes  of  reward. 
It  has  been  the  voluntary  tribute  of  a  free 
and  grateful  people  to  the  illustrious  dead. 
We  have  brought  with  us,  to  witness  the 
last  sad  ceremony,  a  delegation  from  the 
Clay  Association  of  the  city  of  New  York, 
and  delegations  from  the  cities  of  Cin 
cinnati  and  Dayton,  in  Ohio.  Much  as  we 
have  seen  on  our  way,  it  is  small  compared 
with  the  great  movement  of  popular  sympathy 
and  admiration  which  everywhere  bursts  forth 
in  honor  of  the  departed  Statesman.  The  riv 
ulets  we  have  witnessed  are  concentrating,  and 
in  their  union  will  form  the  ocean  tide  that 
shall  lave  the  base  of  the  pyramid  of  Mr. 
CLAY'S  fame  forever. 

Mr.  Chairman,  and  gentlemen  of  the  Lex 
ington  Committee,  I  have  but  one  remaining 
duty  to  perform,  and  that  is — to  deliver  to 
you,  the  neighbors  and  friends  of  Mr.  CLAY, 
when  living,  his  dead  body  for  interment. 
From  my  acquaintance  with  your  characters, 
and  especially  with  your  Chairman,  who  was 
my  schoolmate  in  boyhood,  my  associate  in 
the  Legislature  in  early  manhood,  and  after 
wards  a  co-laborer  for  many  years  on  the 
bench  of  the  Appellate  Court,  I  know  that  you 
will  do  all  that  duty  and  propriety  require,  in 
burying  him  whose  last  great  services  to  his 
country  were  performed  from  Christian  mo 
tives,  without  hopes  of  office  or  earthly  re 
ward. 

JUDGE  ROBERTSON'S  REPLY. 

Senator  Underwood,  Chaitman,  and  Associate 
Senators  of  the  Committee  of  Conveyance: 
Here,  your  long  and  mournful    cortege  at 
last  ends — your  melancholy  mission   is   now 
fulfilled — and,  this  solemn  moment,  you  dis 
solve  your  connexion   with   your  late  distin 
guished  colleague  of  Kentucky. 

With  mingled  emotions  of  sorrow  and  of 
gratitude,  we  receive  from  your  hands,  into 
the  arms  of  his  devoted  State  and  the  bo 
som  of  his  beloved  city,  all  that  now  remains 
on  earth  of  HENRY  CLAY.  Having  at 
tained,  with  signal  honor,  the  patriarchal  age 
of  '76,  and  hallowed  his  setting  sun  by  the 
crowning  act  of  his  eventful  drama,  a  wise 
and  benevolent  PROVIDENCE  has  seen  fit  to  close 
his  pilgrimage,  and  to  allow  him  to  act — as 
we  trust  he  was  prepared  to  act — a  still  nobler 
and  better  part,  in  a  purer  world,  where  life  is 
deathless.  This  was,  doubtless,  best  for  hint, 
and,  in  the  inscrutable  dispensations  of  a 
benignant  Almighty,  best  for  his  country. — 
Still  it  is  but  natural  that  his  countrymen, 
and  his  neighbors  especially,  should  feel  and 
exhibit  sorrow  at  the  loss  of  a  citizen  so  use 
ful,  so  eminent,  and  so  loved. 

And  not  as  his  associates  only,  but  as 
Kentuckians  and  Americans,  we,  of  Lexing- 


158 


BURIAL  OF  HEtf RY  CLAY. 


W  and  Fayette,  feel  grateful  for  the  unexam 
pled  manifestations  of  respect  for  his  memory 
to  which  you  have  so  eloquently  alluded  as 
having^  everywhere,  graced  the  more  than  tri 
umphal  procession  of  his  dead  body  homeward 
from  the  National  Capitol,  where,  in  the  pub 
lic  service,  he  fall  with  his  armor  on  and  un 
tarnished.  We  feel,  Mr.  Chairman,  especially 
grateful  to  yourself  and  your  colleagues  here 
present  for  the  honor  of  your  kind  accompa- 
nyment  of  your  precious  deposite  to  its  last 
home.  Equally  divided  in  your  party  names, 
equally  the  personal  friends  of  the  deceased, 
equally  sympathising  with  a  whole  nation  in 
the  Providential  bereavement,  and  all  distin 
guished  for  your  public  services  and  the  con 
fidence  of  constituents, — you  were  peculiarly 
suited  to  the  sacred  trust  of  escorting  his  re 
mains  to  the  spot  chosen  by  himself  for  their 
repose.  Having  performed  that  solemn  ser- 
service  in  a  manner  creditable  to  yourselves 
and  honorable  to  his  memoiy,  Kentucky  thanks 
you  for  your  patriotic  magnanimity.  And  al 
low  me,  as  her  organ,  on  this  valedictory  occa 
sion  ,  to  express  for  her,as  well  as  for  myself  and 
committee,  the  hope  that  your  last  days  may 
be  far  distant,  and  that,  come  when  they  may, 
as  they  certainly  must  come,  sooner  or  later, 
to  all  of  you,  the  death  of  each  of  you  may  de 
serve  to  be  honored  by  the  grateful  outpourings 
of  national  respect  which  signalise  the  death 
of  our  universally  lamented  CLAY. 

Unlike  Burke,  he  "never  gave  up  to  party 
what  was  meant  for  mankind."  His  intrepid 
nationality,  his  lofty  patriotism,  and  his  com 
prehensive  philanthropy,  illustrated  by  his 
country's  annals  for  half  a  century,  magnified 
him  among  Statesmen,  and  endeared  him  to 
all  classes,  and  ages,  and  sexes  of  his  country 
men.  And,  therefore,  his  name,  like  WASH 
INGTON'S,  will  belong  to  no  party,  or  section,  or 
time. 

Your  kind  allusion,  Mr.  Chairman,  to  rem- 
niscences  of  our  personal  association,  is  cordi 
ally  reciprocated — the  longer  we  have  known, 
the  more  we  have  respected  each  other.  Be 
assured  that  the  duty  you  have  devolved  on 
our  Committee  shall  be  faithfully  performed. 
The  body  you  commit  to  us  shall  be  properly 
interred  in  a  spot  of  its  mother  earth,  which, 
as  "the  grav*  O/CLAY,"  will  be  more  and  more 
consecrated  by  time  to  the  affections  of  man 
kind. 

How  different,  however,  would  have  been 
the  feelings  of  us  all,  if,  instead  of  the  pulse 
less,  speechless,  breathless  Clay,  now  in  cold 
and  solemn  silence  before  us,  you  had  brought 
with  you  to  his  family  and  neighbors  the  liv 
ing  man.  in  all  the  majesty  of  his  transcendant 
moral  power,  as  we  once  knew  and  often  saw 
and  heard  him?  But,  with  becoming  resigna 
tion,  we  bow  to  a  dispensation  which  was 
doubtless  as  wise  and  benifi cent  as  it  was  mel 
ancholy  and  inevitable. 

To  the  accompanying  committees  from  New 
York,  Dayton  and  Cincinnati,  w«  tender  our 
profound  acknowledgments  for  their  voluntary 
sacrifice  of  time  and  comfort  to  honor  the  ob 
sequies  of  our  illustrious  countryman. 


In  this  sacred  and  august  presence  ef  the 
illustrious  dead,  were  an  eulogistic  speech  be 
fitting  the  occasion,  it  could  not  be  made  by 
me.  I  could  not  thus  speak  over  the  dead 
body  of  HENRY  CLAY.  Kentucky  expects 
not  me  nor  any  other  of  her  sons  to  speak  his 
eulogy  now,  if  ever.  She  would  leave  that 
grateful  task  to  other  States  and  to  other 
times.  His  name  needs  not  our  panegyric.  The 
carver  of  his  own  fortune — the  founder  of  his 
own  name — with  his  own  hands  he  has  built 
his  own  monument,  and  with  his  own  tongue 
and  his  own  pen  he  has  stereotyped  his  auto 
biography.  With  hopeful  trust  his  maternal 
Commonwealth  consigns  his  fame  to  the  jus 
tice  of  history  and  to  the  judgment  of  ages  to 
come.  His  ashes  he  bequeathed  [to  her,  and 
they  will  rest  in  her  bosom  until  the  judgment 
day;  his  fame  will  descend — as  the  common 
heritage  of  his  country — to  every  citizen  of 
that  Union  of  which  he  was  thrice  tha  trium 
phant  champion,  and  whose  genius  and  value 
are  so  beautifully  illustrated  by  his  model  life. 

But,  though  we  feel  assured  that  his  renown 
will  survive  the  ruins  of  the  Capitol  he  sclong 
and  so  admirably  graced,  yet  Kentucky  will 
rear  to  his  memory  a  magnificent  mausoleum — 
a  votive  monument — to  mark  the  spot  where 
his  relics  shall  sleep,  and  to  testify  to  succeed 
ing  generations  that  our  Republic,  however 
unjust  it  may  too  often  be  to  living  merit,  will 
ever  cherish  a  grateful  remembrance  of  the 
dead  Patriot,  who  dedicated  his  life  to  his 
country  and  with  rare  ability,  heroic  firmness, 
and  self-sacrificing  constancy,  devoted  his 
talents  and  his  time  to  the  cause  of  Patriotism, 
of  Liberty,  and  of  Truth. 

The  remains  were  then  placed  in  a  hearse, 
and  followed  by  the  various  committees,  and 
a  large  concourse  of  citizens,  were  taken  to 
Ashland — the  home  of  the  deceased  patriot  for 
fifty  years,  and  now  the  spot  whither  many  a 
pilgrimage  will  be  made  by  tha  admirers  of 
true  genius,  public  virtue  and  unselfish  pa 
triotism.  The  body  was  there  placed  in  state, 
and  a  vigil  kept  over  it  during  the  night  by  a 
committee  of  young  gentlemen  selected  for  the 
purpose. 

The  morning  of  Saturday  rose  clear  and 
brilliant  as  the  fame  of  him  upon  whose  eye 
its  light  fell  all  unheeded;  and  the  stately 
pines,  planted  by  his  own  great  hand,  looked 
less  like  mourners,  than  green  remembrancers 
of  his  immortal  glory. 

At  an  early  hour  the  city  was  aatir.  Pefore 
sun-rise  thousands  of  vehicles  had  arrived, 
and  continuous  and  unbroken  streams  of  car 
riages,  equestrians  and  pedestrians,  poured 
through  every  avenue  to  the  eity  up  to  the 
hour  fixed  for  the  funeral.  The  streets — the 
windows — the  house-tops — every  place  where 
the  human  foot  could  stand  and  the  human 
eye  could  see,  seemed  to  be  taken  hold  of. 
And  yet,  it  was  all  gloom  and  sadness.  The 
mournful  music— the  muffled  drum — the  veiled 
colors  of  the  soldiery — all  conspired  to  render 
more  solemn  the  imposing  rites. 

At  9  o'clock,  the  Committee  of  the  Senate; 


BURIAL  OF  HENRY  CLAY. 


159 


the  various  Committees  from  other  States;  the 
Committee  of  Arrangements;  the  Committee  of 
Escort  sent  to  receive  the  body;  a  Committee 
from  tho  Masonic  Fraternity  and  the  Pall- 
Bearers,  repaired  to  Ashland  to  receive  the 
body.  On  a  platform  covered  with  black,  in 
front  of  the  main  entrance  to  the  mansion  at 
Ashland,  the  body  was  placed.  Over  it  were 
strewn  flowers  of  the  choicest  description. 
Upon  the  centre  of  the  burial  case  wai  placed 
the  wreath,  fashioned  by  the  hand  of  one  of 
the  mo*t  gifted  and  distinguished  of  our 
countrywomen' — Mrs.  Ann  S.  Stephens — from 
a  rare  flower — the  "Immortelle"  The  wreath 
presented  by  the  Clay  Festival  Association  of 
New  York  ornamented  the  top  of  the  case;  and 
in  rich  profusion  around  it  were  placed  bou 
quets  from  Washington  and  Baltimore,  and  a 
laurel  wreath  from  Philadelphia. 


The  funeral  services  were  then  performed 
by  the  Rev.  Edw  F.  Berkley,  Rector  of  Christ 
(Episcopal)  Church  ia  this  city,  of  which  Mr. 
CLAY  was  a  member.  The  solemnity  of  this 
ceremony,  so  impoiing  on  even  the  most  or 
dinary  occasions,  was  infinitely  heightened 
by  the  occasion  of  its  present  solemnization. 
The  funeral  discourse  of  Mr.  Berkley  wai  el 
oquent  and  feeling  in  the  highest  degree.  He 
spoke  of  the  character  of  the  great  deceased — 
his  talents — his  public  virtue— his  justice— 
and  his  matchless  career.  That  portion  of  his 
address  in  which  he  alluded  to  the  sacrifice  of 
life  by  Mr.  CLAT,  in  his  efforts  to  procure  the 
passage  of  the  measures  of  Adjustment, 
thrilled  every  heart;  and  the  effect  of  the  en 
tire  discourse  upon  hia  audience  fully  attested 
the  powers  of  the  speaker. 


PRELECTION. 


Address  on  behalf  of  the  Deinologian  Society,  of  Centre  College,  delivered  at 
Danville  on  the  &th  of  July,  1834. 

CENTRE  COLLEGE,  July  4,  1854. 
Dear  Sir:— 

Permit  us,  in  our  own  name,  and  that  of  the  Society  which  we  re 
present,  to  expresss  the  high  satisfaction  that  we  have  enjoyed  this  day, 
in  listening  to  your  excellent  address,  and  earnestly  to  request  that  you 
will  comply  with  the  solicitation  of  the  Society,  contained  in  the  follow 
ing  resolution,  viz: 

Resolved,  That  the  thanks  of  this  Society  be   presented  to  the  Hon. 
George  Robertson  for  his  able  and  interesting  address,  delivered  this  day, 
and  that  he  be  solicited  to  grant  us  a  copy  for  publication. 
Very  respectfully,  your  friends, 

ROBERT  M'KEOWN,)  Committee  of  the 
WM.  M.  RIDDLE,  }  Deinologian  So- 
WILLIAM  W.  HILL,  )  ciety  of  C.  C. 


DANVILLE,  July  4,  1834. 
Gentlemen: — 

Although,  as  you  must  know,  the  address,  a  copy  of  which  you 
have  requested  for  publication,  was  prepared  in  very  great  haste,  and, 
as  I  assure  you,  without  any  expectation  that  it  would  ever  have  any 
other  publicity  than  its  delivery  this  day  gave  it;  yet  I  cannot  refuse  a 
cheerful  compliance  with  your  request.  With  all  its  imperfections  it  is 
now  yours — do  as  you  please  with  it. 

Respectfully,  your  friend, 

GEORGE  ROBERTSON. 


ADDRESS, 


ANOTHER  year  is  gone — and   with  it  hav 
gone  forever  many  of  our  countrymen,  neigh 
bors  and  friends.     A  memorable  and  eventfu 
year  has  it  been— a  portentous  era  in  the  affair 
of  men,  and  a  season  of  peculiar  trial  to  u 
and  to  our  civil  institutions.    But  in  the  allot 
merits  of  an  all-wise  Providence,  our  belovec 
country  is  yet  permitted  to  stand  forth  united 
and  free,  and  we  too  have  been  preserved  to 
hail   the  light  of  this  hallowed  day,  and  in 
health  and  in  peace,  once  more  upon  earth,  t< 
make  the  accustomed  offering  of  our  thanks 
giving. 

This  is  no  common  day;  it  brings   with  i 
remembrances,  and  obligations,  and  prospect! 
peculiarly  interesting  and   impressive.     The 
4th  of  July,  1776,  opened  a  bright  and  glorious 
.scene  in  the  great  drama   of  human   affairs 
The  declaration  of  North  American  Independ 
ence  was  the  offspring-  of  the  purest  patriotism 
and  of  the  most  enlightened  reason;  and  al 
ready  it  has  been  the  parent  of  events  which 
must,  in  all  time   to  come,  have  a  great  in 
fluence  on  the  destiny  of  man.     The  time  will 
never  come  when  the  balmy  noon,  whose  58th 
anniversary  we  now  commemorate,  will  not  be 
remembered  as  one  of  the  purest  and  brightest 
that  ever  beamed  upon  the  moral  world.     Then 
it  was  that  Franklin  and  Adams  and  Jefferson 
and   their  compatriot  representatives   of  the 
will  and  intelligence  of  the  people  of  these 
states,  then  colonies,  proclaimed  to  the  world 
these  fundamental  truths — that  all  men  are  by 
nature  entitled  to  bo  free,  and  to  enjoy  equal 
rights  to  life  and  liberty,  to  the  acquisition 
and  security  of  property,  and  to  the  pursuit  af 
ter  happiness,  now  and  forever;  that  the  free 
and  deliberate  will  of  the  people  is  the  only 
legitimate  source  of  all  human  authority;  that 
all  just  government  is  administered  for  the 
greatest  good  of  the  whole  body  politic;  that 
man   is  not  accountable  to  man  ior  his  con 
science  or  his  opinions,  and  should  not  be  dis 
turbed  by  any  human  means,  in  the  free  exer 
cise  of  either  the  one  or  the  other,  and  of  course 
that  no  freeman  should  forfeit  any  civil  right 
or  privilege  in  consequence  of  his  actual  enjoy 
ment  of  perfect  freedom  of  judgment,  or  of 
conscience.     This   was  the   first  formal   and 
authoritative  announcement  ever  made  by  any 
people  of  the  true  elementary  principles  of 
free  government  or  of  social  organization.     It 
was  the  united  voice  of  sound  philosophy  and 
pure  religion,  asserting,  for  the  first  time,  the 
natural  rights  of    an  intelligent,  moral   and 
Christian  people.     But  the  simple  creed  thus 
announced,  God-like  and  ennobling,  as  all  must 
feel   it  to  be  when  considered  as  a  speculation 

21 


of  philanthropy,  would  nevertheless  be  deem 
ed  but  the  illusion  of  a  golden  age  unless  its 
principles,  go  just  and  so  beautiful  in  the  ab 
stract,  can  be  satisfactorily  exemplified  in  the 
actual  condition  of  society  and  the  practical 
operations  of  government.  The  value  and  ap 
plication  of  those  principles  to  any  people 
must  depend  altogether  on  the  moral  character 
and  conduct  of  the  majority.  Theirtruth  and 
value  have  been,  so  far,  happily  illustrated  in 
this  land  of  promise;  and  the  successful  pro 
gress  of  the  great  American  experiment  is 
ascribable  to  the  pervading  intelligence  and 
the  predominant  habits  and  virtues  which  have 
hitherto  signalised  the  great  body  of  the  peo 
ple  of  these  states.  Our  Declaration  of  In 
dependence  was  but  the  reflected  image  of  the 
principles  and  sentiments  of  those  by  whom  it 
was  proclaimed,  and  by  whom  it  was  triumph 
antly  maintained.  The  moral  light,  which  then 
dawned  in  the  hearts  of  our  countrymen,  guid 
ed  them  successfully  through  the  perils  and 
sacrifices  of  a  protracted  and  bloody  struggle 
'or  independence,  and  having  led  them  to  a 
still  nobler  achievement — the  establishment  of 
wisely  constructed  institutions  for  preserving 
-iberty  and  equality — has  already  cast  its 
cheering  rays  over  distant  lands,  and  unless 
extinguished  or  eclipsed  in  this  new  world, 
will  shine  brighter  and  brighter,  until,  with 
the  effulgence  of  perfect  and  universal  day,  it 
will  enlighten  and  bless  all  mankind,  of  every 
jolor  and  every  clime. 

Let  us  then  rejoice  that  our  lots  have  been 
ast  in  this  land  of  liberty,  and  this  age  of 
ight.  And  let  us  all  endeavor  to  feel  and  to 
,ct  as  a  moral  people  should  feel  and  act  on  thi  a 
'ur  great  day  of  national  jubilee — a  day  ever 
o  be  remembered  with  pious  gratitude,  and 
vorthy  to  be  consecrated,  through  all  time,  to 
he  enjoyments  and  the  duties  of  a  reflecting 
latriotism  and  a  comprehensive  benevolence. 

Generation  after  generation  will  pass  away 
nd  be  forgotten,  but  when,  in  the  lapse  of 
ges  yet  to  come,  the  monumental  columns  and 
'yramids  of  nations  shall  have  mouldered  to 
ust,  and  the  names  of  tyrants  and  of  dema- 
^ogues  shall  have  sunk  into  oblivion  or  con- 
empt,  the  immortal  principles  of  our  Decla- 
ation  of  Independence  and  the  virtues  of  the 
atriots  who,  to  maintain  them,  pledged  their 
ves,  \lieu-fortunes  and  their  sacred  honor,  will 
till  shed  a  mild  and  melow  light  which  will 
ever  fade  away  as  long  as  liberty  has  an  altar, 
r  God  has  a  temple  upon  earth.  But  whether 
n  after  times,  here  or  elsewhere,  those  princi- 
les  and  those  virtues  shall  prevail  among 
nen,  or  shall  be  remembered  only  as  the  historic 


ADDRESS  Off  BEHALF  OF  TEE 


glories  of  a  meteor  age,  may  depend  much,  verj 
much,  on  the  conduct  of  those  of  this  gener 
ation,  who,  under  Providence,  have  been  made 
the  recipients  for  themselves  and  the  depositors 
for  all  mankind  of  one  of  the  best  boons  ever 
vouchsafed  bv  God  to  man. 

This  then  is  an  occasion  peculiarly  proper 


factions.  She  too  had  her  demagogues,  and 
the  "  Majesty  of  the  Roman  People,"  was  their 
watchword.  And  though  she  had  her  Fabri- 
cius,  her  Regulus,  her  Cato,  her  Cicero — she 
had  also  her  Clodius,  and  her  Sylla,  and  her 
Caesars,  honored  in  their  day  as  the  friends  of 
the  people;  and  whether  Marius  or  Sylla, 


for  a  dedication  of  our  hearts  to  our  country,  Caesar  or  Pompey  prevailed,  tho  victory  was  in 
and  of  our  minds  to  sober  contemplations  on  1  the  name  of  liberty,  the  Republic  was  "honored 
our  duties  to  ourselves,  to  those  who  have  gone  j  with  a  triumph,  and  a  clamor  of  approbation 


before,  and  those  who  shall  come  after  us,  and 
to  that  Being  who  stood  by  our  fathers  in  the 


echoed  from  the  Forum  to  the  Capitol.     Even 
Augustus  Caesar,  absolute  as  he  was,  preserved 


great  day  of  their  fiery  trial,  and  by  whom  we  the  forms  of  a  Republic,  whilst,  by  the  per- 
will  be  held  accountable  for  the  manner  in  j  version  of  his  vast  patronage  to  his  own  ag- 
which  we  shall  discharge  the  sacred  trust  grandiseraent,  he  made  an  obsequious  and 
committed  to  our  keeping.  ;  prostituted  Senate  the  Registers  of  his  will, 

Standing  as  Ave  do,  on  an  isthmus  connecting  and,  in  the  name  of  liberty,  fastened  a  heavy 
the  dead  and  the  unborn — the  fathers  of  our  i  yoke  forever  on  an  applauding  populace, 
liberty  who  have  gone  before  us,  and  the  sons  j  The  fast  anchored  Isle — the  natal  land  of 
who  are  to  come  after  us  in  joy  or  ia  sorrow —  |  our  fathers  and  the  mother  of  our  common  law 
it  is  our  duty  this  day,  like  the  ancient  Greeks  j  —has  done  much  for  mankind.  But  she  too  lias 
during  theii  Isthmian  and  other  national  com- !  had  her  scenes  of  civil  strife  and  of  blood — 
incinerations — to  observe  an  universal  amnesty  j  her  Wakefield,  her  Smithfield  and  her  Bos- 
and,  glancing  at  the  past,  the  present  and  the  i  worthfield;  she  has  had  her  Tudors,  and  her 
future,  to  banish  all  passion  and  prejudice,  j  Stuarts,  her  Jeffreys,  her  Bonner  and  her 
personal,  partizan  or  national,  and,  as  one !  Cromwell,  as  well  as  her  Sidney,  her  Cran- 
family,  unite  in  the  noble  resolution,  that  we  i  mer,  and  her  Hampden;  and,  after  ages  of 
will  henceforth,  as  long  as  we  live,  do  all  that !  reformation  in  Church  and  State,  her  aristoc- 
we  can  to  cherish  the  virtues,  and  to  preserve,  jracy  still  governs,  her  Hierarchy  still  prevails, 
improve  and  hand  down  the  moral  and  civil  i  and  the  harp  of  Erin  hangs  tuneless  and  sad 
institutions,  without  which  liberty  is  but  licen- 1  on  the  leafless  bow  of  her  blasted  oak. 
tiousness,  and  fre.e  government  but  an  empty  j  The  French  Revolution  had  its  Dantoas  and 
and  delusive  name.  j  ts  Robespierres — and  after  the  kbloody  idol  of 

In  the  history  of  the  old  world  the  philo-  i  licentious  liberty  had,  like  the  car  of  Juger- 
sophic  observer  can  find  but  few  incidents  grat-  jnaut,  crushed  its  thousands  and  overturned 
ifying  to  the  philanthrophic  mind,  and  no  i  the  Temples  of  the  true  God,  a  Pretorian  band 
satisfactory  evidence  of  the  capacity  of  the 'of  Grenadiers  delivered  over  the  ''Republic"  to 
mass  of  mankind  for  the  maintainance  of  ajthe  safekeeping  of  a  Bonaparte, 
just  and  stable  democracy.  Greece,  the  cradle  f  After  contemplating  such  scenes,  well  might 
of  letters,  and  the  nursery  of  the  arts — the  land  I  the  philanthropist  doubt  the  capacity  of  man 
of  Homer,  of  Solon,  of  Herodotus — the  theatre  j  for  self-government,  and  exclaim  in  the  Ian - 


eloquence  and  her  arms,  and  fires  his  genius  from  the  waste  around  him,  he  casts  his  eye  on 
with  illustrious  examples  of  devoted  patriotism;  j  this  green  spot,  he  feels  that  there  is  yet  hope 
but  a  calm  survey  of  her  history  exposes  la-  j  for  man  upon  earth 

inentable  scenes  of  disorder  and  injustice,  the  J  The  discouraging  failure  of  the  experiments 
natural  effect  of  the  ignorance  of  the  multitude,  j  which  had  been  made  of  popular  government 
Under  the  spell  of  a  momentary  inspiration,  j  among  the  most  enlightened  nations  of  ancient 
the  superficial  inquirer  may  be  deceived  with  and  modern  Europe  must  be  attributed,  not  to 


any  invincable  incapacity  for  such  a  govern 
ment,  but  to  the  predominance  of  ignorance  and 
its  consequential  vices.  Universal  liberty  and 
universal  light  are  inseperable.  All  mankind 
have  capacities  for  the  one  as  well  as  for  the 


the  semblance  of  popular  freedom,  but  the  il 
lusion  will  vanish  when  he  beholds  the  army 
of  demagogues  and  their  triumphs:  when  he 
sees  Pisistrates  putting  down  Solon — a  deluded 
mob  subjecting  Aristides  to  ostracism  because 

he  was  called  "  the  just " — and  the  same  po-  other,  and  were  created  for  the  enjoyment  of 
tent,  but  inconstant  engine,  taking  the  life  of  j  both;  and  as  sure  as  there  is  a  wise  and  immu- 
Socrates  because  he  ventured  to  intimate  the  j  table  Providence,  man  will  ultimately  be  ele- 
immortality  of  the  soul,  and  the  existence  of  one,  jvated  to  the  full  and  undisturbed  fruition  on 
and  only  one  God — when  he  beholds  the  inse-  [earth  of  those  great  ends  of  his  moral  being, 
eurity  of  virtue,  and  the  instability  of  justice,  i  Will  that  God,  who  preserved  Christianity 
and  the  final  degeneracy  and  desolation  of  the  j  through  the  gloom  and  desolation  of  tho  mid' 
once  far  famed  Greece,  he  will  feel  that  the 'die  ages,  suffer  liberty,  its  offspring,  to  per- 
p  opulace,  like  its  own  fabled  Polyphemus,  was  I  ish  V  Both,  we  trust,  have  taken  deep  root  in 
a.  blind  giant,  incapable  of  self-direction,  and  j  American  soil.  They  were  planted  by  our 
as  apt  to  destroy  as  to  preserve,  forefathers,  under  circumstances  peculiarly 

Rome^  once  mistress  of  the  world,  was,  in  propitious, 
her  bent  days,  the  great  arena   of  contending  I     The  mariner's  compass,  the  printing-  pre«s, 


DBINOLOOIAN  SOCIETY. 


169 


the  discovery  of  America, "  the  Reformation," 
and  other  subsidiary  agencies  having  opened 
light  on  the  black  cloud  of  ignorance  and  su 
perstition  which  hung  over  Europe  for  ages 
succeeding  the  overthrow  of  civilization  by 
the  barbarians  of  the  north,  man,  long  sub 
jugated  and  degraded,  began  to  understand 
and  to  assert  his  imprescriptable  rights.  But 
still  borne  down  and  oppressed,  many  of  the 
most  intelligent  and  resolute  sought  an  asylum 
in  the  solitude  of  this  virgin  land,  and  brought 
with  them  all  that  was  most  excellent  of  the 
improved  habits  and  institutions — moral,  so 
cial  and  civil — of  the  Transatlantic  world 
which,  with  all  its  charities  of  home  and  of 
country,  they  exchanged  forever  for  the  hope 
of  happiness  in  the  new  world.  Here  was 
then,  for  the  first  time,  exhibited  an  infant  com- 


anization — 
virtuous — n  a- 


inunity  in  the  maturity  of  social  org 
a  people  at  once  intelligent  and  vii 
went  colonies  of  equals  who,  though  still 
dependent  on  the  King,  Lords,  and  Commons 
of  England,  enjoyed  the  protection  of  the  com 
mon  law,  worshipped  their  own  God  in  their 
own  way,  and  far  surpassed  the  mother  coun 
try  in  the  actual  enjoyment  and  prevalence  of 


two  centuries, 
proved  by  their 


civil  and  religious  liberty. 

When,  after  the  lapse  of  nearly 
mch  a  people,  wonderfully  imp 


intermediate  trial  and  experience,  determined 
to  set  up  for  themselves,  they  were  able,  in  full 
manhood,  to  stand  alone,  and  did  stand  up  as 
one  man,  in  the  dignity  and  strength  of  their 
united  moral  energies;  and  they  were  not 
alone — God  stood  by  theni;  because,  as  they 
were  qualified  for  freedom,  THEIE  cause  was  His. 
Thus  panoplied,  success  was  sure;  and  a 
eommon  struggle  ended  in  a  common  blessing. 
The  American  Revolution,  unlike  any  that 
preceded  it,  was  altogether  a  work  of  intelli 
gence  and  virtue.  It  was  a  sober  and  solemn 
a  moral  and  Christian  people  in  be 


half  of  the  rights  of  all.  The  people  began  it 
— the  people  carried  it  on — and  the  people  ended 
it,  for  themselves  and  posterity;  and  it  was  be 
gun  and  carried  on,  and  ended  as  became 
rational  and  just  men,  struggling,  as  equals, 
for  all  that  was  most  dear  to  each. 

National  independence  was  not  the  only  ob 
ject,  and  was  far  from  being  the  only  effect  of 
that  great  appeal;  and,  had  nothing  else  or 
better  been  achieved,  the  revolution  would  have 
been  unprofitable — perhaps  pernicious.  But 
the  ends  of  the  momentous  contest  were  an 
nounced  in  the  Declaration  of  Independence; 
and  those  ends  were  accomplished.  Equal 
rights,  security — justice — crowned  the  final 
triumph;  and  for  these  we  are  indebted  less 
to  the  valor  than  to  the  virtue  of  our  an 
cestors. 

The  close  of  the  war  of  independence  open 
ed  new  dangers.  A  government  was  to  be 
established,  and  history,  with  all  its  lights,  did 
not  furnish  a  safe  model.  Thirteen  independ 
ent  states  were  either  to  be  confederated  or 
consolidated;  and  in  the  one  form  or  the  other, 
it  was  yet  to  be  tried  whether  the  many  or  few 
— one  man  or  all,  should  rule.  But  the  same 
moral  power  which  presided  over  the  Revolu 


tion,  still  presided,  and  out  of  the  chaof  which 
ensued, brought  forth  anew  creation,  orderly, 
beautiful  and  harmonious.  All  desired  the 
greatest  good  of  all.  There  was  no  Ceeesarto 
seek  a  crown — no  Cromwell  to  claim  a  protec 
torate.  No  Plebian  envy — no  Agrarian  pas 
sion — no  religious  fanaticism  produced  the 
Revolution,  or  armed  with  power  an  ambitious 
leader— WASHINGTON"  had  led  our  armies 
to  victory,  and  At*  highest  ambition  was  to  be 
a  free  and  useful  American  citizen.  The 
American  people,  now  liberated  from  foreign 
dominion,  were  prepared  for  freedom.  Feel 
ing  this,  they  were  determined  to  enjoy  the 
great  boon  themselves,  and  to  establish  it  for 
us  on  a  new  and  broad  foundation  of  equal 
rights,  popular  intelligence  and  public  virtue. 
And  have  they  not  done  so?  The  woik  of 
their  hands,  is  it  not  good?  It  is  as  perfect  as 
the  capacities  of  the  age  could  make  it.  It 
was  the  fruit  of  compromise;  a  compromise  of 
diversified  interests  and  opinions;  and  pre 
sents  an  illustrious  example  of  that  liberal 
enlightened  spirit  of  moderation  and  conces 
sion,  without  which  the  Federal  Constitution 
could  never  have  been  established,  and  can 
not  be  preserved.  That  constitution  was  the 
first  organization  of  government  (excepting 
some  of  our  State  Constitutions,  and  the  arti 
cles  of  confederation)  which  any  people  in 
their  primary  assemblies  ever  originated  and 
established.  Doubtless  it  has  defects;  being 
the  workmanship  of  man's  hands,  it  could  not 
be  faultless.  But,  with  such  occasional  alter 
ations  and  repairs  as  experience  shall  recom 
mend,  andfpatriotism  may  adopt,  it  may  do 
all  that  a  form  of  government  can  do,  and  will 
last  as  long  as  public  virtue  shall  prevail.  It 
establishes  the  union  of  the  States  as  the  an 
chor  of  safety — it  defines  and  distributes  po 
litical  power  in  such  a  manner,  as  to  give  to 
deliberate  public  opinion  its  just  operation, 
and  to  secure  justice  against  the  passions  of 


functionaries  or  factions;  and  it  guarantees  to 


to  the  purposes  for  which  it  was  framed,  and 
to  the  expectations  of  those  by  whom  it  was 
adopted.  Under  its  benign  protection,  not  a 
drop  of  bl  ood  has  been  shed  in  civil  war.  Jus  - 
tice  has  been  administered  "without  sale,  de~ 
nial  or  delay;"  our  population  has  increased 
from  four  to  thirteen  millions,  and  our  country 
has  not  only  acquired  great  wealth  and 
strength,  but'has  established  for  itself,  among 
the  nations  of  the  earth,  a  bright  and  distin 
guished  name.  No  title  is  more  honorable,  or, 
among  sensible  men,  more  honored,  than  that 
of  "Citizen  of  the  United  States." 

And  the  valley  of  the  Mississippi — this 
Hesperian  land  of  ours — is  it  not,  with  all  its 
enchanting  wonders,  one  of  the  fruits  of  that 
liberty  and  security  which  have  been  assured 
to  us  "by  our  institutions?  A  wild  wilderness 
when  Independence  was  declared — it  already 
blooms  in  all  the  beauty  and  maturity  of  the 
most  civilized  nation.  Its  population  exceed 
ing  three  millions,  and  increasing  beyond 


164 


ADDRESS  ON  BEHALF  OF  THE 


example,  in  numbers,  in  wealth,  and  in  moral 
power — its  dwellings.itsfannsandits  churches 
— its  cities,  its  colleges,  its  Steam  Boats  and 
its  Rail  Roads — altogether  exhibiting  a  land 
scape,  now  and  in  perspective,  never  surpas 
sed,  if  erer  equaled  in  physical  beauty  and 
moral  grandeur. 


have  raised*  excite  every  prejudice,  pursuade 
every  suspicion,  and  address  every  passion  of 
the  credulous,  the  ignorant,  and  the  unprinci 
pled.  These  eruptive  disorders  cannot  be 
prevented  without  destroying  the  vitality 
which  produces  them.  But  as  long  as  the 
heart  of  the  body  politic  is  sound,  thev  will  be 

i__.t        .  _ : I...,    *     ,1  i   •  i        .,-•  v.i 


But  this  should  be  a  day  of  candor  and  of  |  but  as  pimples  on  the  skin,  and  with  "the  ani 
truth.  Our  country's,  escutcheon  surpassing  malculce  which  live  in  them  and  feed  on  them  , 
though  it  is,  cannot  appear  altogether  spotless,  will  be  carried  off  by  tho  healthy  circulation 
We  have  owed,  and  yet  owe,  with  augment- 1  of  the  pure  blood  of  life.  Hitherto  we  have 
ed  and  continually  increasing  obligations,  a  been  saved  by  the  ultimate  rectitude  and  en- 
sacred  debt  of  iustice  and  magnanimity  to  the  ergy  of  public  opinion — a  resource  that  will 
aboriginal  Red  Men,  whose  homes  we  occupy,  never  fail  whilst  soundness  abides  with  the 
and  whose  council  fires  we  have  extinguished,  body  of  our  people.  Popular  virtue  and  in 
Helpless,  hopeless,  and  forlorn,  a  miserable  telligence  are  the  only  firm  foundations  of 
remnant  only  remains  of  the  once  powerful  I  popular  liberty;  and  until  these  foundations 
lords  of  this  continent.  And  shall  the  last  j  have  been  sapped,  the  superstructure  will  nev- 

j_      •  1 _1 _.       /»_  »T  T~k          1  •  1  i  1  •  1  1       A          ,      • 


melancholy  relics  of  those  vast  tribes  also  per 
ish?  The  honor  of  our  country  forbids  it. 
The  efforts  hitherto,  to  meliorate  their  condi 
tion,  though  well  intended,  have  not  been  al 
ways  the  most  congenial,  or  appropriate,  nor 


er  fail.  Perhaps  the  most  radical  defect 
our  political  organization,  is  the  disproportion 
ate  power  and  patronage  with  which  the  na 
tional  Executive  is  armed.  And  whenever  our 
liberties  shall  fall,  they,  will  sink  under  the 


sufficiently  earnest  and   persevering.     They   combined  action  of  a  perverted  Executive  and 
ean  be  yet  civilized — they  can  yet  be  reclaimed,   a  licentious  press.     But  should  it  ever  be  our 


and  made  useful  and  happy.  Let  it  be  done. 
America  should  do  it — America  can  do  it — 
and  America,  we  trust  and  believe,  will  do  it; 
and,  if  she  shall  accomplish  it,  though  too 
long  deferred,  the  tablet,  on  which  the  achieve 
ment  shall  be  recorded,  will  be  one  of  the  fair 
est  in  ail  her  bright  annals. 

The  philanthropist  has  still  also  to  lament, 
that  a  curse  imposed  on  our  ancestors  when  in 
colonial  subjection,  still  lingers  among  us. 


lot  to  behold  one  of  the  most  alarming  trials  to 
which  our  rights  can  be  doomed — an  unworthy 
Chief  Magistrate,  elevated  and  sustained  by 'a 
selfish  and  ambitious  party,  perverting  hie 
great  patronage,  and  abusing  his  power  by  re 
warding  his  sycophants,  proscribing  all  who 
dare  to  think  honestly  for  themselves,  and  pros 
tituting  the  public  press — and  a  mercenary 
band  of  placemen  and  expectants,  like  the  de 
generate  Romans  in  the  days  of  the  Caesars, 


Domestic  slavery  cannot  be  suddenly  abolished 
in  all  the  States,  consistently  with  the  welfare 
of  either  the  black  man  or  the  white.     A  pre 
mature  effort  of  inconsiderate  humanity,  might  I  acting  out  the  detestable  doctrine  of  Hobbes, 
be  disastrous,  and  would  certainly  tend  to  de-   that  the  king  cannot  bo  guilty  of  perjury   as 
feat  or  retard  the  ultimate  object  of  every  good   ' 
and  wise  man — universal  emancipation.     But 
we  feel  that  public  sentiment,  public  policy^ 
and  individual  interest,   are  all  conspiring  to 
extirpate  the  great  household  evil,   and  will, 
in.  convenient  time,  and  in  some  just  and  eligi 
ble  mode,  satisfactory  to  all,  banish  it  forever 
from  our  land. 

It  must  be  admitted  too,  that,  in  the  progress 
of  our  affairs,  the  effervescence  of  party  has 
sometimes  disturbed  our  tranquility,  and  that 
faction  has,  more  than  once,  dared  to  raise  its 
Cerberean  head.  But  these  evils  will  accompa 
ny  liberty  in  its  best  estate.  No  unmixed  good 
belongs  to  earth.  Popular  freedom  cannot  ex 
ist  without  the  occasional  agitations  incident 
to  the  collision  of  different  interests  and 
opinions. 

"Faction  will  freedom,  like  its  shade,  pursue, 
"Yet,  like  the  shadow,  proves  the  substance 

true." 

in  every  free  State,  there  must  be  conflicting 
opinions,  and  rival  interests,  which  will  pro 
duce  parties  fired  with  emulation,  and,  not 
unfrequently,  armed  with  passion  and  preju 
dice.  And  where  there  are  such  parties,  there 
will  be  demagogues — light  and  protean  news 
paper  politicians,  hollow-hearted  and  deceitful 
—who,  floating  on  the  bubbling  tide  themselves 


only  because  the  supremacy  .of  their  master's 
will  is  indispensable  to  the  attainment  of  their 
personal  ends,  vindicating  those  abuses  and 


long  as  the  people  can  be  prevailed  on  to  sanc 
tion  or  can  be  compelled  to  endure  his  usurpa 
tions;  then,  even  then,  if  virtue  and  intelligence 
still  abide  with  the  great  mass,  though  we 
shall  lament  the  loathsome  scenes,  we  need 
not  tremble  or  dispair;  the  rightful  sovereigns 
will,  at  last,  asseit  their  supremacy,  and  "come 
to  the  rescue"  of  their  violated  institutions; — 
they  may  come  slowly — but  come  they  will, 
and  with  power. 

But  these  slight  blemishes  at  which  we  have 
just  glanced — what  are  they  in  the  sublime 
prospect  which  this  day  opens  to  our  view? 
They  are  but  the  spots  on  the  sun;  and 
though  the  microscopic  vision  of  misanthropy 
may  magnify  them,  they  are  lost  in  the  great 
panorama  which  our  country  presents  to  the 
eye  of  an  instructed  and  comprehensive  pa 
triotism.  Could  Boonc  and  Harrod  and  Logan 
— when,  in  this  once  •' land  of  blood,  "  thev 
first  trod  in  the  tracks  of  the  Indian  und  the 
Buffaloe — have  dreamed  that  what  we  now 
behold  in  this  smiling  West,  would  so  soon 
have  succeeded  their  adventurous  footsteps, 
how  would  such  a  vision  have  cheered  them 
amidst  the  solitude  and  perils  which  they  en 
countered  in  aiding  to  plant  civilization  in  the 
wilderness!  But  oh!  the  pilgrim  band  of  Ply 
mouth  Rock;  the  offcast  germ  of  the  once  leafless, 


SOCIETY 


165 


sapless,  tree  of  light — what  holy  joy  would 
theirs  have  been,  had  their  last  lingering; 
glimpse  of  the  green  fields  of  their  childhood 
been  gilded  with  a  hope,  that  the  then  house 
less  solitude  of  their  refuge  would,  so  soon,  or 
ever  be  transformed  into  a  vast  cultivated 
garden,  the  abode  of  that  libert^religion  and 
law,  for  which  they  had  abandoned  forever  the 
comforts  and  endearments  of  the  homes  of 
their  birth? 

Here  let  us  pause,  and  contemplate  our  ac 
tual  condition — its  peculiar  and  pre-eminent 
blessedness,  its  h  opes,  its  fears,  its  duties,  and 
its  responsibilities.  All  that  our  noble  sires 
hoped  lor,  and  all  that  rational  man  could  ex 
pect,  is  now  ours.  This  fair  country  is  ours; 
and  that  liberty,  that  religion,  and  that  just 
and  equal  law,  for  which  the  hardy  hunter  and 
the  pious  pilgrim  longed  and  suffered,  are  all 
ours — ours  to  enjoy — ours  to  uphold — ours  to 
improve,  and  exalt  and  transmit.  We  are  in 
deed  the  heirs  to  rich  blessings — the  price  too 
of  virtue,  of  blood,  and  of  tears  that  greatly 
enhance  their  sacredness  and  their  value.  To 
prove  ourselves  worthy  of  these  blessings  is 
a  sacred  duty  wo  owe  to  those  who  secured 
them  for  us — to  ourselves  who  hope  to  enjoy 
them  and  to  our  children,  who  will  have  a 
right  to  claim  them,  unimpaired,  unjeoparded 
and  improved.  Shall  this  threefold  obligation 
be  fulfilled?  Let  this  solemn  question  never 
be  forgotten ;  andmayeach  of  us  be  faithfully 
answering  it  by  our  conduct,  as  we  should,  as 
long  as  we  live. 

To  enjoy  and  preserve  we  must  maintain,  by 
just  and  proper  means,  the  union  and  the  har 
mony  of  the  States;  we  must  guard  with  all 
our  vigilance,  alfd  defend  with  all  our  ener 
gies  the  Federal  Constitution,  and  should  nev 
er  permit,  or  connive  at  any  infraction  of  its 
provisions  or  evasion  of  its  principles  under 
any  pretence,  or  for  any  purpose  whatsoever; 
we  must  never  permit  a  Manlius  to  escape  the 
sentence  of  public  justice  by  pointing  to  the 
Capitol  which  ho  onoo  saved — nor  even  a 
Scipio  Africanus,  when  properly  arraigned, 
whether  guilty  or  innocent,  to  elude  a  fair 
and  full  trial  by  appealing  to  the  battles  he 
had  won  for  his  country;  the  public  law  must 
be  inflexibly  supported  by  all,  because  it  is  the 
only  support  or  security  of  all;  we  should  al 
ways  give  our  suffrages  to  those  who  are  most 
worthy  and  capable;  we  should  never  trust  or 
sustain  any  functionary,  high  or  low,  who 
adopts  any  other  rule  ot  official  conduct  than 
the  public  good;  w®  should  approve  and  en^ 
courage  all  efforts  and  institutions  which  tend 
to  moral  improvement,  or  to  the  establishment 
of  useful  principles,  or  habits;  we  should  ever 
remember,  and  strive  to  imitate  the  virtues  of 
our  Revolutionary  worthies — and  whenever  we 
feel  doubt  respecting  our  civil  duty,  it  would 
be  well  for  us  to  consider  what,  under  the  same 
circumstances,  Washington  or  Franklin  would 
have,  clone;  and  it  should  ever  be  a  leading 
maxim  of  our  lives,  that,  "aixjve  ourselves  our 
country  sJtould  be  dear," 

The  proposition  that  man  is  capable  of  self- 
government  presupposes,  necessarily,  that  he 


is  virtuous  and  intelligent.  This  truth,  so 
self-evident,  is  exemplified  by  the  history  of 
every  age. 

Much  has  been  written  about  the  most  ef 
fective  social  organization,  and  the  best  con 
servative  principle  of  States.  But  all  the 
wisdom  of  the  most  learned  Philosophers,  and 
all  the  artifices  of  the  most  experienced  pol 
iticians,  never  did  nor  ever  can  project  any 
expedient  which  can  supply  the  want  of  a 
general  diffusion  of  moral  light.  As  a  free 
moral  agent,  man  in  the  social  and  civil  state, 
must  be  regulated  by  moral  principles.  It  is 
the  dictate  of  reason  as  well  as  a  law  of  nature 
that,  among  equals,  the  majority  should  gov 
ern;  and,  among  equals,  the  majority  will 
govern.  But,  unless  the  majority  understand 
their  rights,  and  their  duties  too,  and  possess 
the  virtues  essential  to  the  maintenance  of 
those  rights  and  the  proper  discharge  of  those 
duties,  they  frill  not  long  govern,  and,  what- 
every  may  be  the  form  of  government,  they 
will,  in  fact,  be  governed.  This  is  equally  the 
dictate  of  reason  and  the  law  of  nature.  W  hen 
the  numerical  plurality  are  incapable  of  just 
self-control,  those  who  are  virtutemajoris,  and 
not  those  who  are  numero  pluris,  constitute  the 
actual  and  efficient  majority,  and  the  only  one 
that  can  govern  wisely  or  safely.  As  "Knowl 
edge  is  power,"  those  who  do  not  possess  an 
equal  degree  of  intelligence  and  virtue,  should 
not,  and  cannot  exercise  an  equal  degree  of 
moral  influence.  It  is  worse  than  mockery  to 
declaim  about"  liberty  and  equality,"  when  the 
great  lever  of  moral  power  is  held  by  a  com 
paratively  few  members  of  society,  who  must 
govern  as  long  as  reason  predominates;  and 
when  that  does  not  prevail,  passion,  like  a 
volcanic  eruption,  overruns  every  opposing 
barrier.  And  either  dilemma — the  one  being 
oligarchy,  and  the  other  anarchy  or  mobocra- 
cy — is  inconsistent  with  liberty  and  safety. 
The  best  organized  government  must  be  prac 
tically  the  one  or  the  other,  unless  the  great 
body  of  the  people  possess  a  pervading  and 
preponderating  moral  power.  The  genius  of 
the  government  should  be  adapted  to  that  of 
the  people;  and  the  practical  government  will 
be  the  image  of  those  by  whom  it  is  adminis 
tered  and  controled.  It  is  political  quackery 
to  attempt  to  preserve  republican  institutions 
among  a  corrupt  or  ignorant  people. 
"What  is  a  free  State? 
"Men,  high  minded  men. 
"M.enwho  their  duty  know , 
"But  (also)  know  their  rights. 
-'And,  knowing,  dare  maintain — 
"THESE  constitute  a  State." 
The  stability  of  a  constitution  depends  not 
so  much  on  its  structure,  as  on  public  opinion. 
The  principles  of  the  people,  however  bad, 
will  prevail  over  those  of  their  constitution, 
however  good.  The  constitution  can  afford  no 
security,  unless  it  be  revered  as  inviolable  by 
those  whose  will  must  govern.  Unless  the 
mass  of  the  people  be  enlightened,  vigilant, 
and  true,  those  who  may  be  intrusted  witL 
power,  may  not  be  such  as  are  worthy  of  the 
trust,  and  may  do  as  they  please  and*  still  be 


166 


ADDRESS  Off  BEHALF  OF  *  HE 


sustained  by  a  misled  majority,  even  in  tramp 
ling  down  their  constitutional  bulwarks,  and 
forging  their  own  chains.  N"o  vassalage  is  so 
complete  as  that  of  the  will— no  servitude  so 
hopeless,  or  degrading,  as  that  of  the  mind. 
That  mind  which  is  under  the  dominion  of  any 
other  mind,  is  not  free;  it  is  a  slave,  though  it 
may  wear  gilded  chains.  And  a  mind  under 
the  dominion  of  passion,  ignorance,  or  vice,  is 
not,  whilst  thus  enslaved,  a  free  agent,  or  fit 
to  be  free.  A  community  of  such  minds  can- 
uot  enjoy  civil  liberty. 

When  the  people  are  truly  enlightened,  tu 
mults  and  encroachments  can  do  no  permanent 
mischief— and,  without  such  guardian  intelli 
gence,  the  best  constitution,  and  the  wisest 
laws  cannot,  in  a  popular  government,  secure 
either  tranquility  or  justice. 

A  stable  democracy  is  the  natural  offspring 
of  the  maturity  of  society,  when  the  people 
are  good  and  wise.  In  such  a  community, 
neither  aristocracy  rior  monarchy — the  neces 
sary  fruits  of  the  'immaturity  of  society — can 
be  maintained.  A  striking  illustration  of  this 
self-evident  truth,  may  be  seen  in  the  Lillipu 
tian  Republic  of  Sari  Marino;  where  all  the 
citizens,  being,  by  a  common  discipline,  as 
nearlv  equal  as  possible  in  moral  power,  main 
tain,  in  practice,  as  well  as  in  speculation, 
equal  and  just  institutions,  and  laws  which 
have  a  moral  force  far  more  efficacious  than 
physical  and  merely  political  power  combin 
ed.  There  the  law  supports  all,  because  it  is 
supported  by  all;  every  infraction  of  any  law 
is  deemed  an  attack  on  the  security  of  every 
citizen,  because  it  is,  by  the  integrity  and  in 
violability  of  their  laws,  that  their  rights  are 
secured,  or  felt  to  be  secure.  And  thus  they 
happily  exemplify  the  maxim  of  Solon — 
"Force  is  the  lot  ol  some,  LAW  is  the  support 
of  all." 

Though  the  perfectability  of  man  in  his  pro 
bationary  state  is  but  the  vision  of  a  vain  and 
benevole'nt  fancy,  yet  the  infinite  inprovability 
of  the  human  mind,  and  of  the  moral  charac 
ter,  is  as  certain  as  it  is  ennobling.  Dominion 
over  the  earth  was  granted  to  man  in  the 
great  charter  of  his  being,  which  endowed  him 
with  a  rational  and  immortal  mind.  This  ele 
mental  spark  is  the  puncum  saliens  of  human 
power;  nourished  amd  expanded  by  proper 
culture,  it  can  be  made  as  resistless  in  its  in 
fluence  as  it  will  be  wonderful  in  its  develop 
ments.  Behold  the  disparity  between  the  civ 
ilized  and  the  savage  man — between  the  Chris 
tian  and  the  Pagan  world.  Remember  Athens  in 
the  days  of  her  glory — the  conquest  of  Mexico 
by  Cortes,  and  of  the  kingdom  of  the  Sun  by 
Pizarro.  Look  at  the  mariner's  Compass,  the 
Telescopu,  the  Printing  Press?,  the  Cotton 
Loom,  the  Steam  Boat — observe  the  magic 
inarch  of  improvement  in  this  wonderful  age 
— the  arts,  the  institutions,  the  laws  of  these 
our  days;  and  behold  n.  Newton  measuring  the 
sun — a  Herschel  scanning  the  stars,  and  view 
ing  the  mountains  of  the  Moon— a  Franklin 
drawing  Lightening  from  Heaven — and  then, 
even  then,  we  have  but  a  glimpse  of  the  ca 
pacities  of  the  human  mind,  or  of  the  power 


of  hximan  knowledge.  The  power  of  knowl 
edge  is  not  only  sure  and  comprehensive,  but 
attractive  and  happifying.  It  is  the  power 
of  being  good,  and  of  doing  good — it  is  the 
power  of  being  happy,  and  of  making  happy 
— it  is  the  power  of  being  all  that  man  should 
be,  and  of  doing  all  that  man  should  do  for 
his  own  happiness  and  the  welfare  of  his 
country.  It  is  the  chief  nourco  of  truo  hap 
piness.  It  purifies  the  heart,  whilst  it  exalts 
the  mind.  It  is  incompatible  with  dissolute 
habits,  sordid  appetites,  and  vulgar  ambition. 
As  it  elevates  and  expands  tho  intellectual 
and  moral  faculties,  it  affords  resources  for  en 
joyments,  both  rational  and  useful,  and  aid* 
in  preventing  licentious  habits,  and  in  de*> 
troying  the  contagion  of  idleness  and  vice.  An 
enlightened  mind  alone  can  enjoy  "the  feast  oj 
reason  and  the  flow  of  soul;"— it  communes 
with  itself,  and  draws  aliment  from  every 
thing  it  sees  or  hears — it  finds 

"'Tongues  in  trees,  and  books  in    flowing 

brooks, 

"Sermons  in   stone*,    and  God  in    every 
thing." 

The  true  patriot  will  strive  to  enlighten  the 
popular  mind,  and  will  endeavor,  by  proper 
means,  to  propagate  truth,  dispel  error,  and 
eradicate  vice.  By  such  efforts  he  will  help 
to  meliorate  tho  condition,  exalt  the  character, 
and  secure  the  rights  of  his  fellow  men.  The 
citizen  who  will  not  thus  act,  is  not  the  peo 
ple's  friend,  or  his  country's  friend;  nor,  what 
ever  he  raav  say  or  think,  can  he  bo,  at  heart, 
in  favor  of  "universal  liberty  and  equality. 

Does  the  philanthropist  wish  to  promote  the 
welfare  of  his  race?  Let  him  aid  in  the  diffu 
sion  of  knowledge.  Does  the  American  pa 
triot  hope  that  the  liberty  which  he  enjoys 
may  become  universal  and  indistmctible?  or 
do  we,  who  are  fathers,  hope  that  our  children 
maybe  free  and  happy,  and  be  able  to  trans 
mit  those  blessings,  unmarrcd,  to  their  chil 
dren?  Those  hopes  are  vain  and  delusive, 
unless  the  light  of  true  knowledge  be  properly 
and  effectually  diffused.  We  must  instruct 
one  another — wo  must  educate  our  children — 
educate  them  in  the  habits  and  principles  in 
which,  as  freemen,  they  should  live,  and  in 
which;  to  bt.  freemen,  they  must  live. 

One  of  the  most  comprehensive  definitions 
jf  education,  is  that  given  by  Agesilaus — 
"Children  should  be  taught  that  which  it  will 
be  proper  for  them  to  practice  when  they  reach 
mature  age."  He,  whose  habits,  principles, 
and  taste  are  not  established  when  he  reaches 
manhood,  is  in  great  danger  of  never  having 
good  or  fixed  habits,  or  principles,  or  taste. 
The  stamina  of  intellectual  and  moral  charac 
ter  nre  formed  in  the  plastic  season  of  youth. 
Nothing  is  more  ductile  than  the  infant  mind; 
it  may  bo  moulded  into  almost  any  shape. 
The  lives  of  Herodotus,  of  Demosthenes,  of 
Alexander,  of  Hannibal,  of  Franklin,  and  of 
many  other  illustrious  men,  exemplify  this 
truth.  It  has  been  said  by  a  wise  man,  that 
the  reason  why  an  old  man,  while  he  remem 
bers  scarcely  any  thing  recent,  retains  a  vivid 
recollection  of  the  incidents  of  his  boyhood, 


DEINOLOGIAN  SOCIETY. 


167 


is,  because  the  interesting  scenes  of  his  youth 
became  identified  with  Ms  soul.  Hence  the  ev 
ident  importance  of  early  and  proper  instruc 
tion;  and  especially  that  which  may  be  given 
on  the  mother's  lap,  and  under  the  paternal 
roof.  Lessons  and  examples  then  imprinted 
and  principles  thus  implanted,  will  grow  with 
the  mind,  and  forever  influence  its  tone  and 
character.  How  responsible  then  is  the  pa 
rental  charge?  and  now  important  is  it,  that 
parents  should  be  wise  and  prudent  and  vigi 
lant?  A  mother's  tutelage — how  sacred,  and 
how  eventful!  She  it  is,  who,  more  than  any 
other  human  being,  may  create  or  destroy  the 
germ  of  virtue.  Remember  the  "mother  of  the 
Gracchi,"  and  the  mother  of  Washington. 
Parents  remember  these  immortal  mothers,  and 
try  to  imitate  their  maternal  examples. 

That  which  is  taught  in  primary  schools 
and  colleges  is  called  science,  which  is  noth 
ing  but  knowledge  reduced  to  system,  so  as 
to  be  easily  acquired,  well  retained,  and 
promptly  applied  to  its  proper  use  in  the  busi- 
uese  of  life.  All  human  science  may  be 
comprehended  in  a  threefold  generalization — 
1st.  Mathematical,  or  science  of  number  and 
quantity;  2nd.  Physical,  or  the  science  of  ex 
ternal  nature;  and  3d,  Moral,  or  the  science 
which  teaches  the  moral  nature,  and  obliga 
tions  of  man  in  the  natural,  social,  and  civil 
state.  In  each  of  these  classifications,  many 
subordinate  departments  of  knoweledge  are 
included.  "We  will  repeat  some  of  the  more 
elementary  and  essential  only.  Pure  mathe 
matics,  comprehends  arithmetic  or  the  science 
of  numeration,  and  geometry,  or  the  science  of 
mensuration.  Physical  science  embraces  me 
chanical  philosophy,  or  the  sensible  motion 
and  action  of  bodies — Chemistry,  or  the  in 
herent  qualities  and  laws  of  matter — Anatomy, 
or  the  animal  structure — Physiology,  or  the 
functional  economy  of  animal  life — Zoology, 
or  the  nature  of  irrational  animals — Botany,  or 
the  properties  of  the  vegetable  kingdom — 
Minerology,  or  the  nature  of  the  mineral  king 
dom — and  Geology,  or  the  structure  and  com 
position  of  the  earth.  Moral  science  includes 
Ethics,  or  the  duties  of  man,  as  a  rational  and 
accountable  being — Mental  Philosophy,  or  the 
phenomena  of  mind — and  Jurisprudence,  or 
the  principles  of  legislation.  This  is  a  very- 
imperfect  outline;  but  general  and  incomplete 
as  it  is,  it  may  serve  to  show  the  vastness  and 
beauty,  and  value  of  that  intellectual  domain, 
which  it  is  the  destiny  of  mind  to  achieve  and 
enjoy.  The  higher  branches  of  scholastic  ed 
ucation  are  taught  in  colleges  and  universities. 
And  it  is  the  duty  of  all,  who  feel  an  interest 
in  the  propagation  of  knowledge,  to  give  their 
countenance  to  such  institutions.  It  is  the  in 
terest  of  the  poor  as  well  as  the  rich,  of  the 
weak  as  well  as  the  strong,  that  his  own  coun 
try  should  provide  suitable  nurseries  for  in 
vigorating  and  expanding  the  faculties  of  its 
own  citizens,  so  as  to  acquire  for  itself  charac 
ter  and  power,  and,  for  the  humble  and  the 
obscure,  protection  and  instruction.  Such 
men  as  Socrates,  and  Demosthenes  and  Cice 
ro  and"  ETawton  and  Bacon  and  Burke  and 


Adams  and  Jefferson  and  Hamilton  and  Mad 
ison — are,  to  the  moral,  what  the  luminaries  of 
Heaven  are  to  the  natural  world.  The  higher 
institutions  of  learning  are  almost  indispensa 
ble  to  the  production  of  such  moral  lights. 
And  it  should  not  be  forgotten,  that  most 
of  the  patriarchs  of  the  Revolution — men  full  of 
scientific,  as  well  as  practical  wisdom,  had 
been  students  in  colleges  or  universities. 

Colleges  not  only  prepare  the  more  active 
minds  for  usefulness  and  distinction,  but  they 
are  efficient  agents  for  the  diffusion  of  correct 
elementary  education.  Wrong  education  is 
worse  than  no  education.  Primary  schools  have 
been  woefully  deficient  in  qualified  teachers, 
and,  notunfrequently,  have  been  injuriously 
perverted  by  ignorant  pedagogues.  The  col 
leges,  if  well  patronized,  might  furnish  for 
common  schools,  teachers  of  the  proper  qual 
ifications,  who,  in  the  useful  employment  of 
moulding  the  human  mind,  might  acquire,  for 
themselves,  honor,  and  for  their  country,  glo 
ry.  And  thus  too,  might  society  be  relieved 
of  literary  drones,  who,  by  idleness  and  in 
activity,  too  often  propagate  a  pestilent  con 
tagion  in  the  sphere  in  which  they  move.  No 
vocation  is  more  honorable  or  useful,  than  that 
of  the  elementary  teacher;  and  no  man  can  be 
too  exalted  for  such  employment.  When  such 
men  as  Pythagoras  and  Adams  and  Crawford, 
were  teachers  of  youth,  who  should  be  asham 
ed  to  be  a  good  school-master?  But  elemen 
tary  teaching  will  never  be  as  general  or  as 
useful  as  it  should  be,  until  well  educated 
teachers  can  be  easily  obtained. 

Common  schools,  properly  conducted,  are 
also  useful  auxiliaries  to  colleges,  in  affording 
convenient  opportunities  for  cheap  preparatory 
education.  But  were  they  adapted  to  no  other 
purpose  than  that  of  educating  those  classes 
of  society  whose  sphere  will  be  that  of  the 
common  mass,  their  utility  could  not  be  over 
rated.  The  value  of  elementary  education 
has  but  seldom  been  rightly  estimated  by  the 
enlightened  and  benevolent;  and  never  has 
been  justly  appreciated  by  that  portion  of  man 
kind,  whose  destiny  forbids  higher  scholastic 
attainments .  Every  citizen  should  be  acquaint 
ed  with  the  rudiments  of  science — the  elemen 
tary  principles  of  the  arts  of  civilized  man — 
the  organic  laws  of  the  animal,  vegetable,  and 
mineral  kingdoms  of  nature — the  fundamental 
principles  of  moral  and  political  law,  and  his 
own  duties  and  rights  as  a  man  and  a  citizen. 
It  is  the  duty  as  well  as  the  interest  of  every 
citizen  to  understand  the  principles  of  the 
Federal  and  State  Constitutions;  and,  though 
the  American  statesman  cannot  hope  1o  seethe 
municipal  laws  of  his  country  taught,  like 
those  of  Minos  once  were,  as  a  part  of  com 
mon  education,  still  he  should  desire  to  see 
every  citizen  instructed  in  the  principles  of 
his  government.  These,  like  the  twelve  ta 
bles  of  Roman  law,  should  be  taught  as  a 
carmen  necessarium  in  every  common  school. 

The  great  object  of  elementary  education, 
is,  to  employ  the  youthful  mind  in  such  a 
manner  as  to  establish  proper  habits  of  thought 
and  of  action— -to  prepare  the  pupil  for  the  ae- 


163 


ADDRESS  ON  BEHALF  OF  THE 


tive  business  of  life,  and  to  enable  him  to  un 
derstand  his  true  destiny.  And  the  body,  as 
well  as  the  mind,  requires  attention.  "'A 
sound  mind  in  a  sound  body"  is  essential  to 
happiness,  and  to  the  utmost  usefulness.  Gym 
nastic,  and  other  more  scientific  exercises  of 
the  body,  are  conductive  to  grace  as  well  as 
to  vigor  and  health;  and  are  therefore  useful 
if  not  indispensable.  We  feel  that  tte  are  in 
danger  of  degenerating ; — active,  industrious, 
and  moral  habits  are  too  much  neglected. 

But  the  best  interests  of  the  commonwealth, 
uo  less  than  our  own  sacred  duties,  require 
that  our  daughters,  as  well  as  our  sons,  shall 
be  well  educated— instructed  practically  in  all 
the  domestic  duties,  and  instructed  also  in  the 
elements  of  science.  Woman's  influence  on 
the  destiny  of  man  is  unsurpassed.  She  will 
ever  be  his  good  or  his  evil  genius.  The  ob 
ject  of  his  most  tender  relations — the  first  and 
most  impressive  instructress  of  his  children 
— his  confidant — his  counsellor — the  compan 
ion  of  hisjoys — the  sharer  of  his  woes — WIFE 
— MOTHER — surely  she  should,  by  proper 
culture,  be  well  qualified,  in  every  respect,  to 
dignify  and  adorn  the  important  station  to 
which  Providence  has  exalted  her  sex. 

A  well  organized  system  of  common  schools, 
sustained  by  the  public  sentiment,  is  indis 
pensable  to  the  greatest  happiness  and  the 
highest  glory  of  the  Republic.  The  poor,  as 
well  as  the  rich,  must  be  protected.  All  should 
be  carefully  instructed.  Every  child  in  the 
commonwealth  is  a  child  of  the  commonwealth 
and  should  be  equally  the  cherished  object 
of  her  guardian  care.  Here  lies  her  strength 
—here  her  liberty — here  her  true  glory.  Let 
her  rally  all  her  moral  energies,  and  blend  all 
her  scattered  rays;  let  not  her  neglect  cause 
one  intellectual  flower  to  "blush  unseen,  or 
waste  its  sweetness  on  the  desert  air" — and  then, 
and  not  till  then,  she  will  have  equality — then 
power — and  then  an  unwritten  law  in  the 
hearts  of  her  people,  far  more  salutary  and 
effectual  than  all  the  sanctions  of  all  her  writ 
ten  codes. 

In  our  own  blessed  America,  the  importance 
of  diffusing  truth  cannot  be  exaggerated.  J» 
man  capable  of  self -government?  This  prob 
lem  of  ages  is  now,  and  perhaps  for  the  first 
time,  subjected  to  a  fair  test.  Americans  may 
solve  it  for  themselves,  and  for  the  whole  hu 
man  race.  All  has  been  done  for  us  that  the 
mere  structure  of  government  could  have  done 
— all  that  the  wisdom  and  example  of  our  pa 
triarchs  could  do.  But  our  institutions  are 
yet  in  a  state  of  eventful  trial.  They  are  but 
the  anatomy  of  liberty — public  sentiment  is  the 
SOUL.  The  vitality  as  well  as  the  longevity 
of  the  yet  living  idol,  depends  on  the  purity 
and  intelligence  of  those  who  worship  at  her 
shrine.  The  virtue  of  our  fathers  imparted 
the  Promethean  spark,  and  the  breath  of  their 
children  must  preserve,  or  extinguish  the  ves 
tal  flame  which  they  kindled  on  our  country's 
altar.  The  vital  air  of  liberty  is  puie  intelli 
gence,  as  pervading  as  the  sun.  Without  this 
Yhifyi«g  element,  the  whole  organic  structure, 


beautiful  as  it  is,  must  soon  become  a  lifeless 
mass,  and  perish. 

But  mere  philosophy,  however  sublimated 
or  prevailing,  is  not  the  only,  or  the  surest 
safeguard  of  human  liberty.  Reason,  the 
most  unerring,  is  still  frail  and  flitting  and,  un 
aided,  is  but  the  Eutopia  of  More,  or  the  Pta- 
tonopolis  of  Plotiiius.  This  important  truth  is 
demonstrated  by  the  history  of  the  Pagan 
world.  Social  man  needs  a  law  immutable — 
some  motive  beyond  the  grave — a  pure  and 
faced  religious  principle.  This  is  his  ANCHOR 
— sure  and  steadfast. 

In  its  purity  and  simplicity — the  Christian 
Religion  is  the  friend  and  companion  of  civil 
liberty — its  constant  companion— its  best  friend 
It  taught  man  his  true  dignity,  and  his  true  and 
equal  rights.  It  elevated  woman  to  her  just, 
rank  in  the  scale  of  being;  and,  even  amid  the 
perversions  and  prostitutions  of  a  wild  super 
stition,  it  rescued  literature  and  civilization 
from  the  ruins  of  a  dark  and  desolating  age. 
It  is  not  the  metaphysical,  or  polemic  theology 
of  the  schools,  nor  the  infaUible  "orthodoxy" 
of  sectarian  bigotry,  nor  the  false  religion  of 
persecution,  nor  the  bloody  religion,  of  Smith - 
field,  and  of  the  Inquisition — of  which  we 
speak;  but  it  is  that  mild  and  pure,  and  holy 
religion,  which  rebukes  intolerance,  and  dis 
pels  ignorance,  and  subdues  vice — that  heav 
enly  religion  which  beams  in  the  pious  moth 
er's  eyes,  and  hallows  the  accents  of  the  pious 
mother's  lips — that  religion  which  proclaims 
peace  on  earth,  and  good  will  to  men,  and  in 
spires  that  love  to  God  and  to  man  which  pu 
rifles  the  hearts  and  overcomes  the  world. 

It  is  the  prevalence  of  this  last  and  brightest 
hope  of  man  that  will  establish  his  liberty  on 
the  rock  of  ages.  And  this  it  was,  pure  and 
unconstrained  as  it  came  from  Heaven,  that 
the  father  of  his  country  recommended  to  the 
people  of  these  United  States,  when,  in  his 
valedictory  address,  he  conjured  them,  by  all 
they  held  dear,  not  only  to  regard  religion  as 
the  firmest  prop  of  their  liberty  and  happi 
ness,  but  to  treat,  as  a  public  enemy,  him  who 
should  ever  attempt  to  undermine,  or  to 
shake  it. 

Had  not  Washington,  like  Fabius,  led  our 
armies,  and  saved  our  country,  and  then,  like 
Cincinnatus,  retired  to  his  farm — had  not  his 
influence — more  than  that  of  any  other  man, 
induced  the  adoption  of  the  Federal  Constitu 
tion — had  nothis  rare  virtues,  and  the  weight 
of  his  character  preserved  that  Constitution 
in  its  infancy,  and  paralyzed  the ,•  Briarian 
monster  that  threatened  its  destruction — the 
closing  act  of  his  public  life — his  farewell  ad 
dress  to  his  countrymen,  would  alone  have 
entitled  him  to  an  imperishable  monument. 
Let  those  countrymen  always  revere  his  prin 
ciples,  and  follow  his  advice,  and  their  liber 
ties  will  last  as  long  as  their  country  shall  be 
known  as  "the  country  of  Washington." 

Young   Gentlemen    of     Centre  College,    at 
whose  request  this  address  is  attempted — may 
I  now  be  permitted,  respectfully,  to  invite  your  ^ 
attention  to  yoxir  own  peculiar  duties  and  pros- 


DEINOLOGIAtf  SOCIETY. 


169 


pects?  Having  engaged  m  the  pursuit  of 
knowledge  in  its  highest  branches,  much  will 
devolve  on  you,  and  much  will  be  expected  of 
you,  as  conspicuous  actors  in  the  opening 
scenes  of  active  life.  Your  efforts  and  your 
examples,  may  have  a  peculiar  influence. 
Shall  it  be  salutory,  or  shall  it  be  pernicious? 
will  you,  by  honoring  science,  bring  honor  on 
yourselves,  upon  this  excellent  institution, 
and  upon  your  country? 

He  who  desires  to  be  practically  wise,  should 
be  a  close  observer  of  men;  and  should  be, 
not  only  industrious  and  persevering,  but 
systematic  arid  patient.  It  was  chiefly  by  a 
judicious  method,  that  Bacon  achieved  won 
ders.  Although  engaged  actively  in  the  Ju 
risprudence  of  his  day,  he  wooed  the  muses 
with  a  success  almost  miraculous;  and,  whilst 
he  was  deciding  two  thousand  chancery  caus 
es  in  a  year,  he  found  time,  not  only  to  display 
his  Botanic  taste  in  beautifying  his  garden, 
but  to  write  his  Novem  arganum.  Had  he, 
like  Leibnitz,  wasted  his  time  in  desultory  or 
miscellaneous  studies  and  vainly  attempted 
universal  conquest,  he  would,  like  that  litera 
ry  epicure,  have  achieved  but  comparatively 
little.  He  was  also  patient.  He  lived  for 
mankind,  and  looked  to  posterity  for  his  re 
ward;  so  did  Solon,  and  i\rewton,  and  Milton, 
and  Franklin — whose  names  possess  more  mor 
al  influence  than  those  of  all  the  sciolists  and 
chieftains  the  world  ever  saw. 

Many  a  signal  abortion  has  been  the  conse 
quence  of  impatience,  and  premature  ambi 
tion.  Let  the  young  student  and  the  nestling 
politician,  remember  Tiberius  and  Caius  Grac 
chus,  and  let  him  never  forget  the  Dialogue 
between  Socrates  and  Glauco.  Let  him  re 
member  that  it  is  in  the  maturity  of  right 
knowledge,  practical  as  well  as  speculative, 
that  useful  service  is  to  be  rendered,  or  unfad 
ing  laurals  to  be  plucked — that,  if  he  wishes 
to  be  distinguished  as  a  Jurist  he  must  do  as 
Coke,  and  Mansfield,  and  Marshall- -did  £hat,  if 
he  desires  political  fume,  he  must  follow  the 
example  of  Cicero,  of  Burke,  of  Chatham,  and 
of  Madison;  and  that,  if  he  wishes  to  adorn 
the  sacred  desk,  he  should  look  to  Saurin,  to 
Whitfield,  and  to  Alexander. 

Learn  as  Bacon,  and  Newton,  and  Franklin 
learned — by  patient  and  rational  induction. 
Banish  all  false  idols  which  lure  but  to  decoy; 
and  especially  abjure  Bacon's  idolta  Tribus  and 
idola  Theatri.  A  servile  imitation  of  distin 
guished  men — a  proneness  to  theories,  and  an 
eagerness  for  generalization,  have  ever  been 
common  stumbling-blocks  in  the  way  of 
science.  Aristotelian  abstractions,  and  Aca 
demic  jargon  reigned  with  a  mystic  and  fatal 
spell  over  the  intellectual  world  for  two  thou 
sand  years.  Cartesian  reveries  then  had  their 
day  of  pernicious  authority;  and  even  Bacon 
the  founder  of  the  true  system  of  philosophis 
ing  by  induction  from  facts  well  ascertained, 
did  notlive  to  be  hold  the  complete  triumphs  of 
his  great  innovation,  and  was  not  himself,  in 
all  respects,  an  examplar  of  his  own  rational 
principles. 

In  the  succeeding  age,  the  human  mind, 
22 


rendered  presumptuous  by  its  achievements' 
and  still  ignorant  of  the  true  principle  of  knowl" 
edge,  or  inattentive  to  it,  became  sceptical,  and 
not  unfrequeutly,  Atheistical.  And  though  the 
Atomic  philosophy  of  Leucippus  and  Deinocri- 
tus  had  been  exploded,  and  Plat-onisrn  and  Sto 
icism  had  been  renounced,  a  new  system  of 
Epicurianism  was  erected  on  their  ruins. 

The  physiological  hypothesis  of  Locke,  be 
ing  perverted,  or  misunderstood,  encouraged 
Materialism.  And  the  developments  of  the 
inductive  process  having  inspired  a  delusive 
confidence  in  human  reason,  the  Humes  and  the 
Berkleys  of  the  17th  century,  dethroned  com 
mon  sense,  unhinged  the  minds  of  men,  and 
left  nothing  certain  but  the  uncertainty  of 
knowledge. 

Atheism  and  Theophilanthropy  were  the 
fruits  of  their  metaphysical  sophisms  of  pre 
sumptuous  reason  and  perverted  ratiocination. 
And  anarchy,  vice  and  confusion  followed. 

But  knowledge  is  certain;  and  true  knowl 
edge  inspires  humility,  as  well  as  confidence. 
It  teaches  the  mind  to  move  in  its  appropriate 
sphere — to  forbear  enterprise  beyond^its  pow 
er — to  trust  to  its  own  light  as  a  safe  guide  in 
its  own  domain,  and  to  follow  that  light  where - 
ever  it  leads,  and,  when  it  goes  out,  to  stand 
still.  Newton  is  the  most  perfect  model  of  the 
true  philosophy,  and  most  happily  illustrated 
its  proper  sphere  and  its  great  efficacy. 

Knowledge — thorough  and  right  knowedge, 
is  opposed  to  bigotry,  selfishness,  and  cynic 
ism — it  wages  an  incessant  war  with  idleness 
and  vice — it  is  benevolent,  and  its  benevolence 
is  active — it  aspires  to  positive  usefulness,  and 
is  afraid  to  do  nothing  but  that  which  is  wrong 
— it  will  not  follow  a  multitude  to  do  evil — it 
knows  that  "the  fear  of  man  bringeth  a  snare" 
• — it  knows  that  popularity  is  not  an  infallible 
evidence  of  merit,  and  is  as  evanescent  and 
uncertain  as  the  wind — it  knows  that  to  do 
good,  and  not  to  seeni  good,  is  the  duty  of  man 
— and  well  it  knows,  that  honorable  fame,  is  th  e 
reward  only  of  honorable  conduct;  that  to  des 
pise  such  fame  isbut  to  despise  the  virtues  which 
alone  can  earn  it,  and  that  the  Amaranthyne 
wreath  can  adorn  none  but  the  good  and  the 
wise,  who  climb  the  lofty  cliff,  where  it  blooms. 

The  enlightened  mind  has  resources  for  ad 
versity,  which  no  vicissitude  of  fortune  can 
destroy,  and  the  want  of  which  no  wealth  or 
power  can  supply.  When  harrassed  by  care, 
assailed  with  obloquy,  or  bereaved  of  friends, 
the  man  of  true  philosophy  has  still  a  fund  on 
which  he  can  draw  with  confidence,  and  of 
which  no  earthly  power  can  ever  deprive  him, 
as  long  as  his  reason  is  left  unimpaired.  The 
sanctuary  of  a  pure  and  cultivated  mind  will 
afford  him  peace  and  comfort  when  darkness 
and  desolation  are  around  him.  Remember 
Cicero.  He  had  seen  his  country's  glory  blast 
ed  by  upstart  demagogues — he  had  been  exiled 
and  his  house  had  been  demolished  by  the 
mock  patriot  Clodius — death  had  borne  from 
his  arms  his  lovely  Tullia,  the  only  remaining 
prop  of  his  declining  years — but  then,  even 
then,  when,  to  the  mere  animal  man,  nothing 
remained  but  gloom  and  despair,  he  enjoyed 


170 


ADDRESS  ON  BEHALF  OF  THE 


in  his  retirement,  the  society  of  the  illustrious  not  the  station,  but  the  manner  in  which  it  is 
dead,  and  the  consolations  of  philosophy,  and  filled  which  gives  dignity  and  honor.  Always 
thus  soared  abore  destiny  and  robbed  fate  of  j  thus  acting,  you  may  be  benefactors  of  yonr 
its  victim.  To  his  friend  Sulpicius,  he  wrote  j  race— may  help  to  exalt  your  country  and  con- 
thus — "My  daughter  remained  to  me — that  solidate  its  liberties,  and  at  last  earn  for  your- 
was  a  constant  support — one  to  which  I  al-  i  selves  enduring  monuments, 
ways  had  recourse — the  charm  of  her  society  Fellow  Citizens — all  who  hear — of  every 
made  me  almost  forget  my  troubles;  but  the  j  age  and  condition — we  all  have  our  allotted 
frightful  wound  I  have  received  in  losing  her,  [  places,  and  our  alloted  duties.  Shall  we  fill 
uncloses  again  all  those  I  had  thought  healed,  j  those  places,  and  discharge  those  duties  as 
I  am  driven  from  my  house  and  the  Forum."  freemen  ought?  Whatever  may  be  our  station, 


But  toVarrohe  wrote  thus — "I   have  recon-   our  influence  will  be  felt.     Then,   "act   well 

ciled  my  self  with  my  books — they  invite  me  to  !  your  part,  there  all  the  honor  lies." 

a  renewal  of  our   ancient   intercourse — they  j     Like  the  golden  leaves   of  Autumn,  our  pa- 


tell  me  that  you  have  been  wiser  than  I  in 
never  having  forsaken  them — I  seek  rny  repose 
with  true  satisfaction  in  my  beloved  studies." 
Do  you  desire  that  fame  which  shines  like 
the  twinkling  star,  and  whose  temple  stands 
immovable  on  the  mountain's  summit?    Knowl 
edge — true  knowledge,  is  the  beaten  and  toil 
some  way,  and  all  other  paths  bewilder   and 
mislead.    Who  would  not  prefer  the  fame  of 
Socrates  to  that  of  Cleon — that  of  Cicero  to 
that  of  Clodius,   or  Anthony,  or  Lepidus,  or 
Caesar? — the  fame  of  virtue  to  the  blazonry  of 
titles  or  of  arms? — Knowledge  is  the  only  pass 
port  to  a  virtuous   immortality ;  and  its  per 
sonal  exemplifications    shed  a  happy  moral 
influence.     Sappho,  you    know,   was  canon 
ized  as  the  10th  muse;  and  old  Cato  was  call 
ed  the   13th  table  of   the  Roman  law.     And 
the  classical  reader   remembers  that,  when  al 
most  all  the  Greeks,  captured  with  Nicias  at 
Syracuse,  had  died  in  dungeons,  a  remnant  of 
the  survivors  saved  themselves  by  the  recita 
tion  of    beautiful    extracts    from   Euripides. 
How  potent  was  the  shadowed  genius   of  the 
immortal  Athenian  when  it  alone  melted  the 
icy  hearts  that  nothing  else  could  touch,  and 
broke  the  captive's  chains  which  justice,  and 
prayers,  ana  tears,  had  in  vain  tried  to  un 
loose?    And  hence  "the   glory   of  Euripides 
had  all  Greece  for  a  monument."     He  too  was 
elevated   by  the  light  of  other  minds.     It  is 
said  that  he  acquired  a  sublime  inspiration 
whenever  he  read  Homer — whose  Iliad   and 
whose   Odyssey — the   one  exhibiting   the  fa 
tality  of  strife  among  leading  men — the  other 
portraying  the  efficacy  of  perseverance — have 
stamped  his  name  on  the  roll  of  fame  in  let 
ters  of  sunshine,  that  will    never  fade  away. 
No  memorial  tells   where  Troy  once  stood — 
Delphi  is  now  mute — the  thunder  of  Olympus 
is  hushed,  and  Apollo's  lyre  no  longer  echoes 
along  the  banks  of  the  Peneus — but  the  fame 
of  Homer  still  travels  with  the  stars. 

But  my  young  friends,  knowledge,  to  be 
useful,  must  be  active.  If  you  wish  to  be  most 
useful,  do  not,  like  Atticus,  shrink  from  the 
responsibilities  of  public  life,  nor  always 
agree — right  or  wrong — with  the  dominant 
party, — but,  rather  like  Cicero,  actively  and 
honestlay  devote  all  your  talents  to  the  service 
of  your  country,  and  in  vindication  of  its  in 
stitutions  and  its  liberties.  With  Epaminon- 
das,  neither  seek  nor  decline,  on  account  of 
their  imputed  dignity,  places  of  public  trust; 
and  always  rpzaewlw  his  maxim,  that,  it  is 


triarchs  are  dropping  around  us;  a  few  only 
remain  to  watch  over  the  work  of  their  hand*, 
and  close  the  age  of  glory.  La  Fayette  —  the 
last  surviving  general  of  the  Revolution  — 
friend  of  our  country,  and  benefactor  of  man 
kind  —  has  just  taken  his  flight  from  the  troub 
led  scenes  of  earth,  and  is,  we  hope,  once 
more  and  forever,  united  with  Washington  and 
Adams  and  Franklin.  And  soon  —  too  soon 
for  us  —  not  one  of  the  patriarchal  band  will  be 

eft  behind  to  guide  and  to  instruct  the  new 
generation  that  succeeds  them.  And  when  — 
appointed  by  Heaven  —  the  last  survivor  shall 
close  the  long  line  in  its  march  to  the  skies, 
shall  he  tell  that  the  great  work  of  their  lives 
was  in  vain  —  that  their  sons  have  proved  re- 

reantand  dishonored  their  trust?  —  or  shall  he 
bear  the  glad  tidings  tkat  all  is  yet  safe?  Let 
us  be  true  to  ourselves  and  faithful  to  the  mem 
ory  of  our  illustrious  dead,  and  all  will  be  safe 
—  safe  to  us,  and  safe  to  those  whom  we  shall 
leave  behind  us.  All  depends  on  ourselves  and 
our  fellow-countrymen.  Shall  this  Union  be 
dissolved,  and  the  fame  and  the  ashes  of  our 
father's  divided?  Will  we  bequeath  to  our  chil 
dren  happiness  or  woe  —  degradation  or  glory? 


go 
d  vi 


Our  work  is  not  hard.  Honesty,  and  vigi 
lance,  and  true  public  spirit  among  ourselves, 
and  proper  examples  and  precepts  to  our  chil 
dren,  will  finish  all  that  remains  for  us.  Let 
improve  our  country,  and  preserve  and 
strengthen  the  fabric  of  liberty  reared  by  our 
predecessors;  and  let  us,  by  the  proper  means, 
prepare  our  successors  for  its  continued  pre 
servation  and  enjoyment.  The  age  of  glory  is 
past  or  is  fast  passing  away.  Let  this  be  the 
age  of  improvement  —  improvement  here  as 
well  as  elsewhere—  improvement  in  virtue  and 
intelligence-—  in  government  and  in  laws. 

And  then  —  after  we  too  shall  have  joined 
oui  friends  and  the  friends  of  our  country 
above  —  should  our  departed  spirits  be  permit 
ted  to  re-visit  the  scenes  of  our  pilgrimage  here 
below,  a  century  hence,  we  may  see  the  Star- 
spangled  Banner  —  unsoiled  and  unrifled  — 
proudly  waiving  over  an  hundred  million  of 
our  posterity,  free  and  happy,  and  grateful  to 
those  who  completed  the  great  work  our  fath 
ers  began.  And  then  too  —  with  Washington 
and  Adams  and  Jefferson  and  La  Fayette  — 
may  we  behold,  in  the  temple  of  concord  and 
union,  the  altar  of  liberty,  the  altar  of  justice, 
and  the  altar  of  God,  standing  side  by  side  — 
firm,  broad,  and  resplendant;  and  consecrated 
forever  to  Earth  and  to  Heayen. 


PRELECTION. 


Introductory  Lecture,  delivered  in  the  Chapel  of  Morrison   College,  on  the 

7th  of  Novemer,  1835- 

LEXINGTON,  NOVEMBER  9th,  1835. 

DEAR  SIR: — We  have  been  deputed  by  the  LAW  CLASS  of  Transyl 
vania  University,  to  express  to  you  the  high  gratification  they  received 
from  the  delivery  of  your  Introductory  Discourse;  and,  to  request,  that 
you  would  favor  them,  with  a  copy  for  publication. 

We  take  pleasure  in  performing  the  duty  assigned  us,  and  are, 
With  great  respect,  your  obedient  servants, 

BENJ.  TOMPKINS, 
C.  M.  CLAY, 
B.  E.  GRAY, 
W.  M.  TUNSTALL, 
J.  F.  BUCKNER, 
R.  H.  COCKE, 
J.  B.  HOUSTON. 
HON.  GEORGE  ROBERTSON,  Professor  of  Law,      T.     U. 


LEXINGTON,  NOVEMBER  JOth,  1835. 

GENTLEMEN: — In  answer  to  your  polite  note  of  yesterday,  request 
ing  a  copy  of  my  late  Introductory  Lecture,  for  publication,  I  tender  to 
yourselves,  and  to  the  Law  Class  whom  you  represent,  my  acknowledge 
ments  for  your  and  their  kind  consideration,  and  freely  present  you  with 
a  copy  of  the  address. 

With  sentiments  of  high  respect  and  sincere  friendship, 

I  am,  Gentlemen,  yours  respectfully, 

GEORGE   ROBERTSON, 
Messrs.  TOMPKINS,  CLAY,  TUNSTALL,  BUCKNER,  COCKE  and  HOUSTON. 


ADDRESS. 


GENERAL  expectation,  as  well_as  established 
usage,  demands,  at  this  professional  anniver 
sary,  a  public  address  introductory  to  the  di 
dactic  course  of  legal  instruction  in  which  we 
are  about  to  engage.  The  pressure,  until  now, 
of  other  and  more  important  public  duties  has 
left  us  leisure  scarcely  sufficient  for  some  gen 
eral  and  discursive  suggestions  respecting  the 
character  and  elements  of  Law,  as  a  science — 
a  subject  which,  in  its  most  graceful  and  at 
tractive  form,  would  be  comparatively  dry  and 
uninteresting  to  a  miscellaneous  auditory. 

Therefore,  in  attempting  the  discharge  of  this 
preliminary  duty,  we  respectfully  invoke  your 
patience  and  indulgence. 

Among  human  sciences,  Jurisprudence  is 
first  in  utility,  first  in  variety  arid  extent  of 
knowledge,  and  should  therefore  be  first  in  dig 
nity  and  in  public  estimation.  But  neverthe 
less,  vulgar  prejudice,  arising  from  ignorance 
of  its  true  nature  and  extent  prevailing  among 
too  many  of  the  select  class  whose  lives  have 
been  ostensibly  dedicated  to  it  as  a  branch  of 
professional  learning,  has  doomed  it  to  an  un 
just  degradation  in  public  opinion.  When 
considered  philosophically,  it  is  not,  as  it  has 
been  too  often  deemed  to  be,  a  circumscribed  art 
or  trade,  altogether  practical  and  arbitrary, 
but  is  avast  department  of  knowledge,  pre 
eminent  in  value,  illimitable  in  extent,  and 
infinite  in  detail — embracing,  as  far  as  it  is 
visible,  in  its  luminous  outline,  the  elements 
of  all  human  science — the  concentrated  wis 
dom  of  ages — and  the  immutable  principles  of 
natural  fitness  and  enlightened  reason. 

Jurisprudence  is,  as  we  know,  generally  de 
fined  to  be  "the  science  of  Law."  Laws,  ac 
cording  to  Montesque,  are  but  the  necessary 
relations  of  things.  And,  thus  comprehen 
sively  understood,  law  governs  every  thing  in 
the  physical  and  moral  universe;  and  ia  di 
visible  into  two  great  orders — natural  and  pos 
itive — or  universal  and  civil.  Natural  law  is 
immutable  in  its  nature,  and  universal  in  its 
authority  and  operation;  and  js  either  physical 
or  moral. 

Physical  law  governs  the  material  world 
and  all  animal  existence;  and  is  sub-divided 
into  various  subordinate  departments — such 
as  Chemistry,  Mechanical  Philosophy,  Geol 
ogy,  Anatomy,  Phisiology,  Botanv.  Ac.,  <tc. 

Moral  law  is  the  system  of  rules  prescribed 
by  God,  for  the  conduct  of  rational  being*  in  a 
state  of  nature,  or  independently  of  civil  rela 
tions  aud  obligations,  and  is  of  two  classes — 
Theolc-gy,  or  the  relations  and  duties  of  man 
to  his  Creator — and  Ethics,  or  the  natural  re 
lations  and  obligations  of  man  to  his  kind. 


Universal  law,  thus  comprehending  so  many 
interesting  departments  of  knowledge,  each 
depending  on  natural  fitness  and  eternal  prin 
ciples  of  reason  and  of  right,  must  be  admit 
ted  to  be,  not  only  a  perfect,  but  a  beautiful 
and  voluminous  science,  which  vitally  concerns 
all  things  and  all  men,  under  all  circumstan 
ces,  and  throughout  all  time.  It  is,  in  the 
only  perfect  sense,  the  supreme  law,  which 
cannot  be  universally  obeyed  without  univer 
sal  haimony  and  peace,  or  violated,  in  any 
possible  instance,  without  consequent  disorder 
and  punishment.  It  is  the  immovable  founda 
tion  of  all  human  obligation  and  of  all  human 
power;  and  an  enlightened  contemplation  of 
it  in  its  outline  or  in  any  of  its  branches, 
however  minute,  tends  to  elevate  and  ennoble 
the  character  of  man,  and  must  improve  and 
exalfl  the  mind. 

But  of  a  system  so  infinite  and  so  sublime, 
a  more  particular  analysis  would  be  now  inap 
propriate.  We  will  only  add  that  univer 
sal  law  is  either  a  fixed  and  con  tooling  princi 
ple  of  being,  or  an  inflexible  rule  of  action 
emanating  from  the  CREATOR  of  all  things, and 
binding  the  universe  to  the  Throne  of  Heaven. 

Positive  law  is  an  artificial  system  of  rules 
resulting  from,  and  peculiar  to  the  social  and 
civil  state  of  man,  prescribed  by  human  leg 
islation  for  regulating  civil  conduct,  and  en 
forcing  civil  obligations.  These  laws, mutable 
various  and  comparatively  imperfect,  but  in 
dispensable  to  the  happiness  and  dignity  of 
our  species,  constitute  the  elements  of  civil 
jurisprudence.  And  it  is  in  this  restricted 
sense  that  the  term  jurisprudence  is  profes 
sionally  used  and  generally  understood.  And, 
though  universal  jurisprudence  is,  as  it  has 
been  defined — "the  knowledge  of  things  hu 
man  and  divine,  the  science  of  what  is  just 
and  unjust" — the  latter  branch  of  the  definition 
alone  designates  the  science  which  engages 
the  peculiar  attention  of  the  legislator  and 
jurist.  This  may  be  appropriately  termed  civ 
il  jurisprudence,  because  it  regards  man  in 
the  civil  state,  and  regulates  political  and  civ 
il  relations.  This  department  of  jurisprudence 
may  be  sub- divided  into  general  and  particu 
lar,  rational  and  arbitrary.  General  law  is 
that  civil  code  which  has  been  recognized  by 
all  civilized  communities  of  men,  and  is  found 
ed  on  the  principles  of  universal  reason  and 
right. 

Particular  or  local  law  is  the  system  of  pos 
itive  enactments,  which  are  peculiar  to  one 
place  or  people.  The  body  of  the  laws  of  every 
enlightened  age  or  nation,  are  rational,  or  de- 
ducable  from  reason  and  analogy.  This  is 


INTRODUCTORY  LECTURE,  DELIVERED  IN 


173 


science;  profound  and  exalted  science.  Laws 
merely  arbitrary  and  local  aro  comparatively 
rare  and  unimportant. 

Rational  law  prevails,  to  some  extent,  among 
all  civilized  men,  and  is  the  same  every  where. 
And  hence  among  nations,  differing  in  cli 
mate  and  in  language,  the  same  general  rules 
of  individual  right  and  relative  justice  may 
generally  be  found  to  prevail. 

A  thorough  knowledge  of  civil  jurisprudence 
pre-supposes  a  general  knowledge  of  the  prin 
ciples  of  justice,  and  of  social  and  political 
organization,  as  well  as  an  acquaintance  with 
the  history  and  laws  of  nations,  and  the  local 
laws  of  our  own  country;  and  requires  a  mind 
of  peculiar  power,  enlightened  by  general  sci 
ence,  and  invigorated  by  severe  and  systematic 
study;  and  consequently,  it  must  be  a  science 
of  a  high  order.  This  may  be  demonstrated 
by  a  very  slight  attention  to  the  nature  of  law. 
And  our  chief  purpose  in  this  initiatory  ad 
dress  is,  to  improve  this  interesting  occasion  by 
an  imperfect  analysis  of  the  elements  and  ob 
jects  of  positive  law,  and  by  some  incidental 
reflections  on  our  own  peculiar  institutions. 

Society  is  the  natural  state  of  man.     This  is 
proved  by  his  history  in  every   age,  aud  coun 
try,  and  clime;  and  may  also  be  demonstrated 
by  considering,  in  a  rational  and  philosophical 
spirit,  his  physical  and  moral  adaptations — his 
capacities — his  sympathies — his  corporeal  im 
becility  and  helplessness — his  great  improva- 
bility  and  potential  pre-eminence — his  faculty 
of  speech — his  destiny.     Societies  cannot  exist 
without  conventional  organization  and  laws; 
nor  be  happy  or  prosperous,  unless  those  laws 
be  just  and  effectual.     As  all  men  are  by  nature 
entitled  to  equal  personal  rights,   and  as  the 
greatest  attainable  good  of  the  greatest  number 
is  the  ultimata  object  of  political  association, 
the  will  of  a  majority  possesses  an  inherent 
and  natural   authority,  as  a  lav  for  all,   and 
which  therefore,  each  constituent  member  must 
be  presumed  to  have  agreed,  by  the  act  of  be 
coming  a  member,  not  only  to  obey,  but  to  aid 
in  enforcing  and  upholding,  if  it  be  consistent 
with  the  fundamental  principles  of  their  civil 
organization.     As  every  civil  community  must 
have  a  common  will  and  a  corporate  existence 
and  power,  each  individual  member  must  have 
surrendered,  by  necessary  implication,  as  much 
of  his  natural  liberty  as  may  be  necessary  for 
giving  sufficient  authority  and  effect  to  the  ag 
gregate  will,  to  be  expressed  and  enforced  ac 
cording  to  the  terms  and  ends  of  their  associ 
ation  into  one  body  politic.     And  consequent 
ly,  as  human  society  and  human  government 
are  indispensable  to  the  personal  security  and 
dignity  of  every  individual  of  the  human  race, 
all  positive  laws,   authoritively  .enacted  and 
consisting   with   the   principles   of  universal 
law,  possess  a  supreme   sanction  a»  effectual 
and  as  obligatory  as  the   security  and  welfare 
of  the  aggregate  body  and  of  every  constituenl 
member  can  make  it.     It  is  the  interest,  and 
therefore,  the  duty  of  every  citizen  to  acknowl 
edge  the  authority  and  maintain  the  efficacy 
and  dignity  of  the  laws  of  his  country;  for  it 
is  the  supremacy  and  inviolability  of   law 


which  alone  can  preserve  order  or  tranquility, 
or  ensure  justice,  peace  or  security.  And  here 
we  may,  at  once,  perceive  the  nature  of  the 
obligation  of  human  laws— the  importance  of 
wise  and  just  legislation — and  the  beneficence 
of  a  stable,  authoritative  and  enlightened  ad 
ministration  of  positive  law.  Human  legisla- 
ion,  always  imperfect,  must  correspond  with 
:he  character  of  the  legislature.  In  legislation, 
as  well  as  in  physics  and  in  morals,  the  cause 
will  produce  its  kindred  effect;  and,  as  light 
cannot  spring  from  darkness  or  virtue  from 
vice,  so  neither  can  wise  and  salutary  laws  be 
the  offspring  of  legislative  ignorance,  selfish 
ness,  or  passion.  Just  and  rational  legislation 
is  the  rare  fruit  of  prevailing  virtue  and  intel 
ligence.  But,  in  every  civilized  community, 
the  occasional  aberrations  and  capriciousness 
of  the  legislative  will,  almost  invariably  yield, 
in  time,  to  the  salutary  wisdom  of  experience, 
and  to  the  settled  predominance  of  principle. 

The  enactment  and  enforcement  of  law  re 
quire  the  exercise  of  the  three  primordial  func 
tions  of  sovereignty — the  legislative — the  ju 
diciary — and  the  executive;  and  the  deposito 
ry  of  these  powers  possesses  inherently,  in  a 
relative  sense,  incontrolable  authority;  and 
hence  all  law  is,  in  the  same  sense,  paramount 
and  obligatory  as  long  as  it  exists.  Just  comes 
homjubere,  to  command:  and  right  is  rectum 
in  Latin,  the  past  participle  of  regerc.  Thus, 
in  a  legal  sense,  one  person's  right  is  that 
which  all  other  persons  are  ordered  or  com 
manded  by  law  to  let  him  have  and  enjoy.  In 
legitimate  governments,  all  human  laws  are 
enacted  by  the  people,  or  with  their  tacit  or  pre 
sumed  authority  and  consent,  and,  operating 
as  they  do,  personally,  the  legislative  authority, 
wherever  it  may  be  deposited,  or  however  it 
may  be  limited,  must  be  superior  to  the  will  or 
authority,  or  power,  of  any  member  of  the  body 
politic;  and  is,  therefore,  in  this  sense,  su 
preme.  But  it  is  not  necessarily  the  supreme 
power  of  the  State;  and  is  certainly  not  so  in 
the  Iforth  American  states,  whose  written  fun 
damental  laws  limit  the  legislative  authority 
— distribute  the  functions  of  government  into 
three  separate  and  co-ordinate  departments, 
each  independent  of  the  others,  and  reserve  to 
the  people  ultimate  supremacy.  In  England 
there  is  no  fundamental  law — that  which  is 
called  the  British  Constitution,  is  nothing  but 
a  set  of  statutes  and  principles  of  unwritten 
law,  which  have  the  authority  of  legislative 
prescription,  and  have  been,  in  some  degree, 
consecrated,  in  the  popular  feeling  and  judg 
ment,  by  age,  and  national  associations,  and 
ancient  reminiscences.  Hence,  in  England, 
Parliament  is  said  to  be  omnipotent,  and  none 
of  its  enactments  can,  in  a  practical  and  effec 
tual  sense,  be  deemed  unconstitutional,  are 
therefore  void. 

But  here  our  constitution  and  fundamental 
laws  are  declared  to  be  supreme:  and  therefore, 
as  the  judiciary  must,  in  the  administration  of 
the  laws,  decide  what  the  law  of  each  case  is, 
it  must  necessarily  disregard,  as  a  nullity,  any 
legislative  enactment  in  violation  of  the  con- 
01  the  supreme  law.  No  such  in- 


174 


INTRODUCTORY  LECTURE  DELIVERED  IN 


terdicted  enactment  can  here  be  considered 
law.  But,  in  a  political  sense,  the  judiciary 
of  America  is  not  superior  to  the  legislature 
— nor  the  legislature  to  the  judiciary;  each,  in 
its  appropriate  sphere,  is  the  sole  representa 
tive  or  agent  of  the  common  and  only  sovereign 
— the  constituent  body,  or  the  people. 

Positive  law  is  divisible  into  a  three-fold 
classification — national,  organic  and  munici 
pal;  respecting  each  of  which  we  will  now 
proceed  to  take  a  general  notice — a  mere  coup 
ti'ael  view  of  their  character  and  elements,  as 
understood  according  to  American  principles 
and  doctrines. 
'Separate  and  independent  communities  are 

-!,-*»  •  (•  1    •  •  J    »  l»          1   ' 


be  amendable  to  the  judgment  and  control  of 
any  other  nation ,  and  is,  of  course,  under  no 
other  obligation  than  that  of  conscience,  which 
requires  perfect  justice  among  nations  as  well 
as  among  men.  And  hence  the  internal  law 
of  nations  has  arisen.  The  external  law,  or 
law  of  perfect  obligation,  requires  no  further 
explanation  or  definition  than  that  which  the 
term  itself  imports. 

The  natural  law  of  nations  is  necessarily 
immutable  and  universal,  and  can  be  under 
stood  only  by  applying  the  principles  of  ethi 
cal  jurisprudence  to  nations  as  far  as,  in  the 


nature  of  things,  they  are  reasonably  applica- 

_r._ >_r ,ble.     The  fundamental  principle  of  ethicfc   is 

the  natural  offsprings  of  diversities  of  climate  I  that  human  happiness,  temporal  and   eternal, 
— of  topography — of  moral  character — of  Ian-   is  the  ultimate  end  of  human  existence,  and 


affe — and  of  the   vastness  of  the   territory 
» °          i   ,  >          f^  j  i  j    i    i 


and  population  of  the  earth,   separated  by 
physical  and  moral  barriers. 

As  a  nation  or  state  is  but  an  aggregation  of 
natural  persons  associated  into  one  body  poli 
tic  for  social  and  civil  purposes  of  mutual  im 
provement,  security  and  happiness — bound 
together  by  some  fundamental  compact,  ex 
press  or  implied,  and  governed  and  protected 
by  the  same  law  and  the  same  power;  each  in 
dependent  nation  or  state,  though  composed  of 
a  multitude  of  natural  persons  is  politically  and 
relatively  to  all  other  nations  or  states  an  unit, 
possessed  of  legal  and  moral  individuality; 
and  is,  though  an  artificial,  yet  amoral  being. 
Having  a  corporate  power  and  will,  the  differ 
ent  nations  of  the  earth  are,  as  between  each 
other,  like  so  many  natural  persons,  living  in 
dependently  in  a  state  of  nature;  and  conse 
quently,  as  the  laws  of  nature,  though  modifi 
ed  by  the  social  state,  cannot  be  altogether 
abrogated,  each  nation  has  its  peculiar  natural 
rights  and  obligations,  and  must  be  the  subject 
of  a  moral  law,  possessing  an  inherent  obliga 
tion  paramount  to  that  of  any  civil  or  human 
authority;  and  of  course,  also,  there  must  be 
among  nations  some  code  of  international  law 
for  regulating  their  intercourse  and  their  recip 
rocal  rights  and  obligations.  This  is  what  is 
called  "  Ihe  law  of  nations" — which  is  divid 
ed  into  the  natural  and  the  positive  law  of 
nation*.  The  natural  law  of  nations  is  di 
vided  into  two  branches — the  internal,  or  that 
which  is  binding  in  conscience  only,  and  there 
fore  imposes  but  an  imperfect  obligation;  and 
the  external .  or  that  which  creates  a  perfect  ob 
ligation,  which  may  be  enforced  by  an  appeal 
to  arms,  the  ultima  ratio  regis.  As  a  natural 
law  must  be  adapted  to  the  subject  of  its  ap 
plication,  and  as  a  nation  is  not  precisely  and 
in  all  respects  like  a  natural  person,  the  natu- 

%al  law  of  natural   persons  is  onlv  so  far  the 
1  . .  _  * 


law    of   nations  as   it  i« 


to    their 


peculiar  and  essential  character  and  rights. 
A  nation  has  a  right  to  do  whatever  may  be 
necessary  to  preserve  its  independent  existence, 
and  to  promote  the  legitimate  ends  of  that  ex 
istence;  and  an  independent  nation  must, 
from  the  necessity  of  the  case,  be  the  sole 
judge,  in  most  instances,  of  the  proper 
means  of  effectuating  those  ends.  A  nation, 
when  it  has  the  right  to  judge  for  itself,  cannot 


should  be  the  object  of  all  human  action  and 
pursuit.  The  same  principle  is  the  true  test 
of  the  necessary  law  of  nations;  and  conse 
quently,  it  is  the  duty,  as  well  as  the  interest 
of  nations,  to  observe  justice  and  to  cultivate 
peace  and  friendly  intercourse  among  each 
other,  and  to  do  to  each  other  all  the  good  they 
can,  consistently  with  their  own  safety  and 
welfare.  This  was  understood  by  the  wise  and 
good  even  in  the  age  of  Xenophon,  who,  in  his 
Cyropedia,  suggests  a  sufficient  reason  for  it; 
and  that  is,  that  no  nation  can  reasonably  ex 
pect  to  receive  from  another  that  which  it  will 
not  reciprocate,  or,  in  other  words,  more  jus 
tice  and  beneficence  than  it  practices  towards 
others. 

The  positive  or  arbitrary  law  of  nations  is 
composed — 1st.  of  customs  and  usages  which 
have  been  established  by  tacitrecognition,  and 
are  denominated  "the  customary  law  of  na 
tions;  and2d.  of  compacts  and  treaties,  called 
"the  conventional  law  of  nations."  ' 

The  positive  law,  depending,  as  it  does,  on 
consent,  is  liable  to  change.  But  it  is  the  most 
extensive  and  practical  branch  of  national  law, 
and  must  be  learned  in  the  civil  and  diplomatic 
history  of  civilized  nations,  who,  in  modern 
times," and  especially  wherever  the  Christian 
religion  has  shed  its  meliorating  influence, 
have  reduced  international  jurisprudence  to 
something  like  a  regular  and  harmonious  sys 
tem,  foimded  on  the  stable  and  universal  prin 
ciples  of  natural  justice  and  enlightened  pol 
icy.  This  code  of  laws,  thus  hut  recently  ma 
tured  and  systematically  practiced  among 
Christian  nations,  and  to  the  recognition  and 
prevalence  of  which,  the  maxims  and  usages 
of  our  Republic  have  essentially  contributed, 
is  divisable  into  two  classes — the  one  public 
— the  other  private  The  public  law  is  that 
which  regulates  commercial,  social,  and  di 
plomatic  intercourse  between  nations,  and 
defines  their  rights  and  their  duties,  as  be 
tween  each  other,  in  war  and  in  peace,  and  the 
extent  of  their  power  and  jurisdiction.  The 
private  law  is  a  law  of  comity,  regulating  the 
extent  to  which  the  laws  of  one  nation  may 
operate  on  persons  or  things  within  the  juris 
diction  of  another  nation.  The  domestic  laws 
of  the  various  nations  of  the  earth,  for  regula 
ting  contracts,  and  succession  and  personal 
Bights,  and  the  modes  of  acquiring,  and  of 


THE  CHAPEL  OF  MORRISON  COLLEGE. 


175 


holding   and  of  suing  for  property,  differ  in 
a  greater  or  less  degree  from  each  other. 

The  laws  of  one  state  cannot,  proprio  vigore, 
have  an  extra-territorial  operation.  Each  na 
tion  has  an  exclusive  right  to  legislate  for 
itself,  and  to  enforce  its  own  laws  -within  its 
own  jurisdiction.  But  the  interests  of  social 
and  commercial  intercourse  require  some  re 
laxation  of  this  fundamental  principle  of  leg 
islation  and  of  sovereignty,  an  inflexible  and 
universal  adherence  to  which  would,  to  a  great 
extent,  prevent  that  kind  of  personal  and  com 
mercial  intercommunication,  which  is  most 
condxicive  to  the  mutual  harmony,  prosperity 
and  happiness  ef  states.  A  contract  is  made 
in  one  state,  and  its  enforcement  is  sought  in 
another  state.  At  to  the  effect  of  the  contract 
or  the  capacity  of  the  parties,  the  laws  of  the 
two  States  are  in  conflict —  shall  the  lex  loci 
contractus  or  the  lex  fori  prevail?  A  right  to 
property  is  claimed  to  have  been  acquired 
within  the  jurisdiction  and  according  to  the 
laws  of  one  nation,  and  the  property  is  within 
the  jurisdiction  of  another  nation — shall  the 
lex  domiciliior  the  lex  loci  rei  scitae  govern? 

Among  an  almost  infinite  variety  of  cases, 
in  which  there  may  be  a  vexatious  conflict  of 
laws  in  regard  to  persons  and  to  things,  these 
two  alone  may  be   sufficient  to  illustrate  the 
importance  of  that  courtesy  (among  the  more 
enlightened  nations  of  this  age,  which  permits 
the  law  of  one,  in  certain  cases  and  to  a  cer 
tain  extent,  to  prevail  and  be  enforced  within 
the  jurisdiction  and  by  the  courts  of  another; 
and,  as  this  is  a  concession,  partly  ex  comitatc, 
the  system  of  rules  resulting  from  it  is  called 
the  law  of  comity   among  nations,  or  the  jus 
privatum  gentium.     The   mutual   interests   of 
nations  constitute  the  true   principle   of  this 
law,  and  the  rule  deduced  from  this  principle 
is,  that  it  is  the  duty  of  each  nation  to  permit 
foreign  laws  to  operate  within  its  limits,  ex 
cept  so  far  as  its  own   essential  rights  or  inter 
ests,  or  the  just  rights  or  proper  duties  of  its 
own  citizens  may  be  thereoy  surrendered   or 
jeoparded.    It  is  not,  therefore,  altogether  ar 
bitrary;  in  its  nature  it  is  a  law  of  reason  and 
of  justice;  but  its  recognition  and  enforcement 
being  voluntary  and  apparently  ex  gratia,  it  is 
therefore  denominated  a  law  of  comity.     And, 
though   the   extension   of   commerce  and   its 
train  of  enlightening  and  liberalizing  agencies 
have  given   birth  and  maturity,  and  no  small 
degree  of  general  prevalence  and  authority,  to 
this  important  branch   of  international  law, 
within  the  last  half  century,  still  it  depends 
so  essentially  on  plain  and  fixed  principles,  as 
to  be  generally   understood  and   applied  by 
reason  and  analogy,  without  great  difficulty  or 
doubt;  and,  surely,  constituted   as  these  con 
federated  States   are,   no  branch   of  jurispru 
dence  is,  to  the  extent  of  its  application,  more 
interesting  or  useful  to  the  statesmen,  and  ju 
rists,  and   citizens  of  our  complicated  Union. 
Here  it  is  peculiarly  important;  and  the  har 
mony  and  best  interests  of  these  States  require 
that  it    should    be  rightly  understood   and 
scrupulously  regarded. 
But  the  existence  of  an  independent  state  or 


nation  presupposes  an  organic  system  of  laws, 
brought  into  being  by  the  consent,  express  or 
implied,  of  the  whole  mass,  or  by  the  predom 
inant  potver  of  the  few  over  the  many,  and  da- 
pendent,  for  their  character  and  efficacy,  on 
the  moral  and  physical  condition  of  the  con 
stituent  body.  The  philosophy  of  human  na 
ture  teaches  the  philosophy  of  government 
and  of  legislation;  and  history  proves  that 
the  prevailing  character  of  the  people  has  ever 
been,  and  will  ever  continue  to  be,  everywhere 
and  in  all  time,  the  prototype  of  their  govern 
ment  and  laws.  The  organic  laws  of  every 
nation,  not  only  should  be,  but  will  be  adapt 
ed  to  the  character  and  condition  of  the  p«o- 
ple.  And  from  this  political  axiom,  the  inef- 
ficacy  and  abortiveness  of  all  abstract  systems 
of  political  organization,  and  of  all  specula 
tive  codes  of  law,  might  have  been  inferred 
without  the  aid  of  historic  testimony.  The 
excellence  of  government  or  of  laws  is  alto 
gether  relative;  such  as  may  be  the  best  for 
one  people,  may  be  the  worst  for  another.  In 

Sractical  politics  and  legislation,  abstract  per- 
>ction  is  unattainable.  Men  acting  upon  men 
must  act  imperfectly.  The  safety  and  happi 
ness  of  the  people  are  the  ends  of  all  just  hu 
man  laws.  These  ends  may  be  approximated 
only  by  the  appropriate  means,  which  are  as 
various  as  the  diversified  circumstances  and 
character  of  mankind.  Hence  there  is  no  po 
litical  panacea;  and  he  who  recommends  such 
a  nostrum,  is  a  quack,  whose  charlatanism  is 
less  excusable,  because  it  may  be  more  perni 
cious,  than  that  of  Paracelsus  or  Sangrado. 
There  is  no  such  thing  as  abstract  optimism  in 
government  or  in  law.  That  only  is  best 
which  is  most  suitable  to  those  for  whom  it  is 
intended — and  none  is  good,  whatever  may  be 
its  speculative  excellence,  which  is  inadapta- 
ble  to  the  genius  and  habitudes  of  the  people. 
Plato's  Republic,  and  Harrington's  Oceana, 
and  Moore's  Eutopia  are  but  a  few  of  the  many 
monuments  which  speculative  philosophers 
and  scholastic  legislators  have  built  up,  and 
common  sense  has  pulled  down  in  attestation 
of  these  simple  and  practical  truths. 

In  fhe  nature  of  things,  civil  laws,  being  mor 
al  rules  for  tho  government  of  moral  subjects, 
must,  to  be  durable  or  efficacious,  be  modified 
according  to  the  characteristic  principles  of 
the  majority  of  the  people,  for  whom  they  are 
enacted.  And,  as  every  body  politic  must 
have  a  single  will,  which,  however  expressed, 
is  the  actual  government,  the  nature  and  the 
form  of  the  government  will,  of  coarse,  depend 
on  the  intelligence  and  virtue  of  the  individual 
members  of  the  corporate  body.  A  people  en 
lightened  and  virtuous  will  always  govern 
themselves;  those  who  are  not  so,  never  can, 
but  will  be  governed  by  the  superior  intelli 
gence,  craft  or  force  of  a  few  men,  or  of  a  sin 
gle  man. 

Whether  ta  democracy,   pure  or  representa 
tive,  a  republic,  an  aristocracy,  monarchy,  oli 
garchy,,or  anarchy,  shall  actually  prevail,  will 
depend  on  the  moral  character  of  the  people. 
But  the  form  of  government  does  not  al- 


176 


INTRODUCTORY  LECTURE  DELIVERED  IN 


ways  harmonize  with  the  prevailing  tone 
and  character  of  the  public  authority. 

A  constitution  is  a  fundamental  law,  fixing 
the  manner  in  which  the  public  will  shall  be 
expressed,  and  the  national  authority  shall  be 
exercised.  An  unmixed  democracy  cannot 
practically  exist.  Under  such  a  form  of  gov 
ernment,  the  sovereign  power  will  be  assumed 
by  demagogues  or  usurped  by  force. 

Therefore,  for  the  purpose  of  wisely  enact 
ing  and  justly  administering  laws,  the  power 
of  the  whole  people  must  be  delegated,  in 
some  mode,  to  a  part.  And  the  organic  law, 
which  prescribes  the  mode  of  delegation,  and 
defines  the  power,  and  fixes  the  responsibility 
of  the  public  agents  is,  whether  written  or 
unwritten,  express  or  implied,  the  constitution 
of  the  state,  which,  being  the  will  of  the  con 
stituent,  who  is  the  only  original  and  ultimate 
sovereign,  must  possess  an  inherent  authority 
paramount  to  the  conflicting  and  consequent 
ly  unauthorized  will  of  the  representative;  and 
must,  therefore,  be  intrinsically  the  supreme 
law,  which,  as  long  as  it  shall  remain  unre- 
voked  by  the  proper  authority,  is  obligatory  on 
the  whole,  as  well  as  on  each  individual  mem 
ber,  and  department,  and  organ  of  the  body 
politic;  and  its  stability  and  efficacy  will  be 
proportionate,  not  only  to  the  degree  of  its  fit 
ness  and  approvableness,  but  also  to  the  char 
acter  and  effectiveness  of  the  checks  and  bal 
ances,  moral  as  well  as  political,  which  may 
guard  it  from  sudden  and  inconsiderate  de 
struction  or  innovation.  If  it  be  popular  in 
its  origin  and  ends,  the  intelligence,  vigilance, 
and  public  virtues  of  the  majority  of  the  peo 
ple  are  its  ultimate  safe-guards;  but,  to  fortify 
and  effectuate  these  moral  means,  political 
checks  are  not  only  useful  but  indispensable. 
These  truths,  to  us  self-evident,  have  not  been 
and  are  not  even  now  universally  admitted,  al 
though  the  history  of  governments,  from  that 
of  the  Jewish  theocracy  to  this  day,  has  dem 
onstrated  them  by  an  unbroken  series  of  mem 
orable  proofs.  The  dazzling  republics  and 
democracies  of  past  ages — what  were  they, 
and  where  are  they  now?  Let  the  turbulence, 
and  inconstancy,  and  demagoguery  of  Athens, 
and  of  Rome,  and  of  Florence,  and  the  mourn 
ful  desolations  and  dumb  ruins  of  Italy,  and 
of  Greece,  and  of  Carthage,  be  rightly  con 
templated,  and  the  question  is  satisfactorily 
answered.  They  all,  with  one  voice,  utter  this 
great  truth  of  inductive  philosophy — "that  in 
republics,  the  people  are  not  safe  unless  they 
are  enlightened,  virtuous,  and  vigilant,  and 
unless  also  their  fundamental  rights  are  seour- 
ed  by  wise  and  prudent  political  entrench 
ments."  The  history  of  England,  the  mother 
of  our  language  and  common  law,  tells  the 
same  truth,  though  in  tones  of  varied  modula 
tion.  The  English  constitution,  as  it  now 
exists,  is  the  growth  of  ages.  Though  it  has 
had  many  trying  vicissitudes  and  has  under 
gone  great  transformations,  its  Teutonic  stam 
ina,  containing  the  seminal  principles  of  civ 
il  liberty,  have  never  been  altogether  de 
stroyed. 

The  longevity  of  the  English  goTerniuent  is 


a  political  phenomenon .  But,  though  accident 
has  had  a  preservative  influence,  yet  the  phi 
losophy  of  England's  history  will  show  that 
her  constitution  is  indebted,  not  only  for  its 
maturity,  but  for  its  prolonged  existence, 
chiefly  and  essentially  to  the  equipoise  of  an 
tagonist  elements,  social,  moral  and  political. 

The  Norman  Conquest,  as  it  is  called,  was  a 
virtual  revolution,  which  seemed,  for  a  while, 
to  have  extinguished  every  germ  of  Saxon 
liberty.  But  these,  though  dormant,  were  not 
dead;  and,  in  less  than  fifty  years,  began  to 
shoot  through  the  thick  covering  of  leaden 
despotism  which  had,  for  a  time,  concealed 
them.  The  indiscriminating  severity  and  uni 
versality  of  regal  tyranny  consolidated  the 
people,  of  all  grades  and  all  conditions,  into 
one  sympathizing  and  co-operating  mass.  The 
feudel  Lords  and  Yeomen  and  vassals,  thus 
united  by  common  suffering,  mutually  assisted 
each  other,  and  every  success  of  a  common  ef 
fort,  in  their  common  cause,  produced  a  com 
mon  benefit.  Had  the  king  been  less  absolute 
and  the  feudal  nobility  more  independent,  as 
in  contemporaneous  France,  or,  in  other  words, 
had  feudality  been  introduced  gradually,  and 
not  suddenly,  in  England,  as  in  France,  the 
constitution  of  England  would  not  have  been 
much  better,  in  the  last  century,  than  that  of 
France;  where,  in  consequence  of  their  com 
parative  independence,  the  feudal  Lords,  not 
needing  the  co-operation  of  the  common  peo 
ple,  habitually  contemned  and  oppressed  them 
until  they  were  forced  to  unite  with  the  king 
against  their  common  enemies,  and  having, 
at  last  overcome  them,  yielded  every  thing  to 
the  crown. 

But  the  common  people  of  England,  thus 
strengthened  and  upheld  by  the  nobility,  soon 
began  to  retrieve  some  of  their  lost  Saxon 
rights;  until  Magna  Charta  was  wrung  from  a 
reluctant  and  humbled  king.  This,  being  but 
statutory  in  its  character  and  without  effectual 
political  guaranties,  was  frequently  disregard 
ed  by  subsequent  sovereigns;  but  the  Baronial 
war  against  Henry  III.,  having  given  birth  to 
the  house  of  Commons,  the  third  estate  in  the 
government,  and  succeeding  continental  wars 
having  compelled  the  Crown  to  solicit  contri 
butions,  the  Commons  soon  were  taught  to 
use  the  great  leaver  of  the  British  Constitu 
tion,  the  exclusive  right  to  appropriate  money 
or  impose  taxes  for  the  support  of  government, 
and  the  consequent  power  to  withhold  sup 
plies  until  the  grievances  of  the  people  had 
been  redressed.  Thus  nourished,  civil  liberty 
had  taken  deep  root  during  the  reign  of  the 
Plantagenet  dynasty,  until  the  despondence 
and  exhaustion  produced  by  the  intestine 
wars  between  the  houses  of  York  and  Lancas 
ter  paralyzed  all  effectual  opposition  to  the 
absolute  will  of  the  two  Henry's  of  the  Tudor 
race,  which  succeeded.  But  Henry  the  VIII, 
whose  proclamation  was  Law,  being  incensed 
against  papacy,  because  it  would  not  allow 
him  to  repudiate  his  wifo  Catharine  and  marry 
her  maid  the  pretty  Anne  Boleyan  espoused  tho 
reformation,  which  had  then  begun  to  dawn — 
the  discovery  of  America  had  begun  tostimu 


THE  CHAPEL  OF  MORRISOtf  COLLEGE 


in 


late  a  commercial  enterprise  tending  to  enrich 
and  elevate  the  common  people — and  the 
Press  was  beginning  to  shed  abroad  its  vivi 
fying  beams.  The  combined  influence  of  these 
agencies — that  is,  the  prevalence  of  the  re 
ligion  of  equality  and  liberty — the  extension 
of  commerce — and  the  light  of  the  press — to 
gether  with  other  incidental  and  accompany 
ing  causes,  gradually  improved  the  social  and 
political  condition  of  the  people  until  the  te 
merity  and  obstinacy  of  Charles  the  first,  who 
did  not  understand  the  spirit  of  his  age,  pro 
voked  his  own  decapitation,  which  was  suc 
ceeded  by  a  nominal  Commonwealth,  but  an 
actual  Cromwellian  Despotism,  more  rigorous 
and  less  disguised  than  that  of  Augustus 
Cresar.  The  reign  of  Cromwell  was  never  ap 
proved  by  the  mass  of  the  people,  but  waa 
sustained  only  by  his  army  and  by  the  fanati 
cism  of  a  small  party — and,  as  soon  as  the  pop 
ular  voice  could  prevail,  a  Convention  Par 
liament  recalled  Charles  II.  and  restored  the 
constitution  as  it  was  in  the  time  of  Charles  I. 
with  the  exception  of  the  abolition  of  military 


tenures  and  the  substitution  of  other 
for  providing  a  royal  revenue 


The  indemnity 


and  reparation  acts,  and  the  act,  for  the  set 
tlement  of  the  church  were  only  temporary 
expedients.  But,  though  the  spirit  *f  the  con 
stitution  Avas  greatly  improved  and  the  pre 
rogative  of  the  crown  considerably  reduced  by 
the  abolition  of  military  tenures  and  their  op 
pressive  incidents,  no  reign  was  more  absolute 
and  no  court  more  licentious  than  that  of  the 
popular  Charles,  whose  restoration,  being  the 
consequence  of  general  alarm  at  premature  in 
novation  and  partizan  fury,  was  consequently 
followed  by  a  servile  adulation  and  abject  loy 
alty  bordering  on  idolatry.  The  problem  pre 
sented  in  this  memorable  transition  is  solved 
by  the  fact  that  the  people  were  not  prepared 
for  a  republican  government.  But  neverthe 
less,  benumbed  and  besotted  as  England  was 
during  this  profligate  reign,  the  spirit  of  the 
age,  excited  to  action  by  trivial  circumstances, 
abolished  the  Star  Chamber,  which  had  been 
used  as  an  engine  of  oppression,  and  also  in 
duced  the  enactment  of  the  habeas  corpus  and 
other  salutary  statutes.  Many  have  supposed 
that  the  mosi  efficient  agent  in  producing  these 
results  was  the  popular  belief  that  the  revenue 
was  wasted  by  the  king  and  his-  court  in  vo 
luptuousness  and  debaxichery!  and  hence,  not  a 
few  of  those  who  have  studied  the  history  of ; 


kings  and  illustrated  the  true  doctrine  that 
princes  and  ministers  and  governments  are  in 
stituted  by  the  people,  and  are  responsible  to 
the  people  ,  as  from  the  less  conspicuous  fact 
that  the  act  of  settlement  secured  the  independ 
ence  of  the  judges,  by  providing  that  they 
should  be  entitled  to  hold  their  commissions 
during  good  behavior  and  the  life  of  the  king, 
and  thus  furnishing  the  only  certain  and  ult 


mate 


guaranty 
acknowl 


r  for  the  preservation  and  eflica- 
cy  of  acknowledged  principles,  which,  as  long 
as  the  judiciary  was  dependent  entirely  on  the 
pleasure  of  the  crown,  could  have  been  nothing 
better  than  delusive  abstractions.  It  is  the 

irsoii  and  propertv,  assured  to  the 


secur 


urity  of  pe 
st  humble  ! 


by  the  independence  of  an  en 
lightened  judiciary  and  a  wholesome  common 
law,  which,  more  than  every  thing  else,  endears 
England  to  the  heart  of  her  people,  and 
prompts  her  forlorn  tars  to  nail  their  country's 
flag  on  high,  and  cheerfully  die  in  its  defence. 
And,  had  not  this  Doric  column  been  reared, 
the  complicated  fabric  of  British  liberty,  the 
Mosaic  work  of  ages,  could  never,  with  all  it* 
other  props,  have  withstood,  until  now,  the 
underminings  of  corruption  or  the  stormings 
of  faction. 

But  though,  since  the  revolution,  justice  has 
been  more  stable  and  jurisprudence  has  been 
more  improved  than  in  all  the  ages  which  had 
preceded  it,  still  there  are  radical  defects  in 
the  British  system;  and  one  of  the  chief  of 
these  is  the  supremacy  of  legislative  will.  The 
British  constitution  lacks  the  soul  of  a  fun 
damental  law.  It  has  no  other  political  guar 
anty  or  principle  of  vitality  than  the  pleasure 
of  King,  Lords  and  Commons,  in  Parliament 
assembled.  An  act  of  parliament  inconsistent 
with  the  constitution,  is  nevertheless  the  su 
preme  law,  and,  in  the  language  of  Mr.  Hal- 
lam,  the  utmost  that  can  be  said  of  it  is  that  it 
is — "a  novelty  of  much  importance,  tending 
to  endanger  the  established  laws."  The  con 
stitution  of  England,  venerable  as  it  is,  can 
be  found  only  in  the  statutes  and  political  his 
tory  of  that  distinguished  Isle.  Such  a  gov 
ernment  could  not  stand  in  such  a  country  as 
ours,  or  in  any  country  where  there  is  an  ap 
proximation  towards  practical  equality  in  the 
rights  and  the  condition  of  the  people.  And, 
though  in  England  the  inherent  imbecility  of 
which  we  are  speaking  has  been  hitherto,  in 
some  measure,  supplied  by  artificial  expedients, 
yet,  if  her  institutions  shall  become  much 


the  British  Constitution  have  ascribed  to  El- ,  more  popular  in  their  texture,  her  constitution 
eanor  Gwin,  and  to  Barbara,  Duchess  of  Cleve- }  must  become  the  supreme  law  and  its  practi- 
land.  and  to  Louisa,  Duchess  of  Portsmouth,  j  cal  supremacy  must  b«  secured  by  other  guar- 
tlie  accidental  merit  of  hastening  the  down-  anties  than  any  now  provided,  or,  otherwise, 
fall  of  the  Heus«  of  Stewart.  These  causos,  \  dissolution  must  be  inevitable.  A  landed  ar- 


co-operating 


the  arrogant  pretensions  of 


James  II.  and  the  common  apprehension  that 
he  was  exerting  his  influence  against  Protest 
antism,  accelerated,  if  they  did  not  altogether 
produce,  the  civil  revolution  of  1688,  which 
has  been  looked  upon  as  settling  the  British 
constitution  and  consolidating  the  libcuics  of 
England.  But,  it'  it  be  entitled  to  such  merit, 
it  derives  that  title,  not  so  much  from  the  fact 
that  it  exploded  the  jure  divino  pretension  of 
23 


istoeracr,  the  stock  in  an  irredeemable  na 
tional  d*ebt — the  rival  interests  of  the  crown , 
and  nobility,  and  hierarchy,  and  commonality, 
cannot  always  preserve  a  safe  and  stable 
equilibrium.  The  spirit  of  this  age  will,  if 
it  go  on,  require  other  and  more  comprehensive 
expedients.  Liberalism  and  rationalism  arc 
abroad  in  the  world;  and  all  institutions  of 
men  must,  sooner  or  later,  feel  and  acknowl 
edge  their  plastic  influence. 


178 


iNTHODUCf  OUT  D513TURE,  DELIVERED 


In  these  confederate  states— foi  the  first  time  disturb  the  harmony  of  the  states.  The  pow  - 
ou  earth — the  experiment  of  written  coiistitu-  lers  which  had  been  delegated  to  Congress  were 
lions,  popular  in  their  nature,  declared  to  be  1  found  to  be  altogether  inadequate;  1st.  because 
the  supreme  law,  and  formally  adopted  by  all  jthey  were  too  circumscribed^  "2nd.  because  the 
the  people  in  Convention,  are  now  in  eventful  j  acts  of  the  federal  authorities  could  not  be  en- 
progress.  The  issue  can  be  foreseen  only  by  I  forced  by  federal  power,  but  depended,  for 
Him  who  governs  all  things  and  does  all  things  their  execution,  on  the  will  of  each  state, 
well,  and  who,  not  only  made  all  men  free  \  These  radical  defects  evinced  the  necessity  of 
moral  agents,  but  endowed  them  with  noble  j  a  general  government  with  some  national  au- 
faculties  for  attaining  an  exalted  destiny  here  '  thority,  or  with  plenary  and  supreme  power, 
and  hereafter.  |  to  effectuate  national  objects  or  general  ends 

Our  systems  of  government  -are  peculiarly  j  common  to  the  states,  by  operating  directly  on 
complex  in  their  structure,  though  perfectly  (persons  instead  of  states.  That  this  was  the 
simple  in  their  elements.  All  the  people  of  .great  purpose,  of  those  who  recommended  and 
all  the  states,  with  separate  state  constitutions  of  those  who  adopted  the  federal  constitution, 
of  striking  similitude  in  spirit  and  outline —  no  one.  acquainted  with  contemporaneous  his- 
have  adopted  a  federal  constitution,  eonstitu-  tory,  can  doubt.  That  which  was  recommend - 
ting  them  one  people  for  national  purposes,  ed  and  adopted,  was  not  called  a  treaty,  or 
and  intended  to  operate,  within  its  prescribed  league,  or  compact,  or  articles  of  confe'dera 
sphere,  on  each  individual  of  every  state  as 


constituent  members  of  the  same  bodv politic, 
Here  arise,  complexity;  and  hence  the  entire 
system  has  been,  not  inaptly,  denominated 
imperium  in  imperio. 

The  principles  announced  in  our  Declara 
tion  of  Independence  constitute  the  founda 
tions  of  all  of  our  constitutions,  state  and  fed 
eral. 

They  were  all  made  by  the  people,  who  alone 
can  alter  or  abolish  consistently  with  constitu 
tional  right.  They  a  distribute  the  functions  o 
government  into  three  departments — legisla 
tive,  judiciary,  and  exectutivc — define  and 
allot  to  each  department  seperate  powers,  and 
provide  for  the  relative  independence  and 
counteraction,  when  proper,  of  each  of  the 
three  distinct  bodies  of  magistracy.  These 
are  modern  contrivances,  and  great  confidence 
in  their  efficacy  in  the  preservation  of  free 
and  popular  institutions,  has  been  felt  and  ex 
pressed  in  the  new  cis-atlantie  world. 

The  states  are  entitled  to  exclusive  sovereign 
ty  respecting  all  things  of  exclusively  state 
concern.  The  federal  government  is  entitled 
to  exclusive  sovereignty  as  to  every  thing  of 
federal  or  national  bearing  or  concern,  and,  in 
the  event  of  a  conflict  between  federal  and  lo 
cal  authority,  the  constitution  of  the  United 
States,  and  all  laws  and  treaties  made  pursuant 
thereto,  are  declared  to  be  supreme,  any  tiling 
in  any  .state  enactment,  or  state  constitution  to 
the  contrary  notwithstanding. 

The  federal  constitution,  like  those  of  the 
states,  is  popular  in  its  origin,  popular  in  its 
character,  and  popular  or  national  it  its  opera 
tion.  It  is  not,  like  the  Amphyictionic,  Achaicn 
Helvetic,  or  Germanic  confederacies,  a  mere 
league  or  treaty  between  sovereign  and  inde 
pendent  states,  which  can  be  enforced  only  by 
war.  But  it  is  a  form  of  national  government 
— it  is  a  law;  and,  of  course,  a  .supreme  law 
for  all  the  states,  and  for  the  people  of  nil  the 
states.  The  inefficiency  and  unsuitableness  of 
a  mere  confederation  of  the  states  had  been 
demonstrated  by  the  experiment  which  had 
juj»t  been  made  of  the  articles  of  confedera 
tion,  already  in  a  state  of  virtual  dissolution. 
The  war  of  the  revolution  had  scarcelv  been 
Closed  when  collisions  and  jealousies  began  to 


tion  between  sovereigns,  but  was  appropriately 
characterized  as  a  constitution  or  form  of  gov 
ernment  for  the  United  States.  And  it  exhib 
its,  on  its  face,  all  the  qualities  which  entitle 
it  to  that  character,  and  which  will  allow  no 
other  to  be  ascribed  to  it.  Is  it  not  law?  Su 
preme  law?  Are  not  all  treaties  and  acts  of 
Congress,  which  are  authorized  by  it,  laws — 
supreme  laws?  Then  no  ground  remains  for 
doubt  or  cavil.  And  whether  it  be  called  a 
compact  or  a  constitution  is  immaterial;  for. 
whatever  it  may  be.  it  operates  on  all  the  peo 
pie  of  all  the  states,  personally  and  directly, 
and  with  an  authority  superior  to  all  other 
political  power. 

Could  it  not  thus  operate,  and  had  not  the 
general  government  power  to  make  it  so  operate; 
even  against  the  will  of  any  state,  it  would 
be  but  little,  if  at  all,  better  than  the  articles 
of  confederation,  and  would  be  nothing  like 
a  constitution  or  fundamental  law.  Moreover, 
the  people,  and  not  the  state  authorities,  adopt 
ed  it.  The  states,  in  their  political  capacity, 
had  no  power  to  adopt  it.  The  people  of  each 
state,  in  their  primeval  sovereignty,  had  a 
right,  and  the  only  right,  to  modify  their  local 
government;  and  they,  and  only  they,  have 
done  so.  They  have  taken  from  their  respec 
tive  state  authorities  such  powers  as  were 
deemed  necessary  for  effectuating  the  common 
interest,  of  the  whole,  and  have  deposited 
them  in  the  hands  of  agents  chosen  chiefly  by 
themselves  and  responsible  to  no  other  tribu- 
naJ.  The  federal  constitution  is  as  much  the 
constitution  of  all  t-lie  people  of  every  state  in 
the  Union,  u>  the  local  government  of  each 
state  is  the  peculiar  government  of  evarv  citi 
zen  of  that  state;  and  the  functionaries  of  the 
general  government  are,  therefore,  as  much 
the  representatives  of  the  people  of  all  the 
states,  MR  the  officers  of  any  state  government 
are  the  organs  of  the  people  of  the  state.  Then 
the  origin,  nature  and  objects  of  the  federal 
constitution  would  be  sufficient  to  prove — had 
there  been  no  such  express  declaration  by  the 
people  in  convention — that  it  must  possess  nn 
authority  paramount  to  that  of  any  state  con 
stitution,  or  state  legislature;  and  that,  being 
law,  it  must  have  a  sanction,  and  may  l*e  en 
forced  by  those  whom  the  people  of  the  United 


THE  CHAPEL  OF  MORRISON  COLLEGE. 


179 


States  select  for  administrating  their  national 
affairs.  And  it  is  but  a  necessary  corollary 
from  this  conclusion  that,  so  far  as  the  gener 
al  government  has  power,  it  is  sovereign,  and 
is,  until  its  powers  are  revoked — the  only  sov 
ereign  to  the  extent  of  its  exclusive  authority. 
And,  to  this  extent,  the  individual  states  can 
not  be  sovereign,  because,  so  far,  they  have  no 
constitutional  power.  Each  state  is,  however, 
in  one  sense,  a  sovereign — it  is  sovereign  to 
the  extent  of  its  local  power,  and  exclusively 
local  interests.  Sovereignty  typing  the  highest 
power  in  a  state,  the  general  govcrnmentinust 
be  the  only  sovereign  within  its  prescribed 
sphere,  and  each  state  in  the  Union  must  be 
the  only  sovereign  within  the  scope  of  its  res 
iduary  power.  We  speak  of  course,  of  politi 
cal  sovereignly.  God  and  the  people,  are  the 
only  actual  sovereigns  according  to  the  Amer 
ican  creed.  If  the  individual  states  possess 
as  extensive  and  unqualified  sovereignly  or 
political  power  as  they  did  before  the  a<}op- 
tion  of  the  federal  constitution  there  is  no 
general  government — for  ther<'enn  be  no  gov 
ernment  without  inherent  power  to  govern; 
and  consequently,  if  the  people  of  the  states 
are  also  citizens  of  the  United  Stages,  and 
have  a  general  government,  they  must  have 
made  that  government  by  imparting  to  it,  pow 
ers  which  in  list  necessarily  have  been  sub 
ducted  from  tli-"  original  power--  of  the  local 
governments. 

To  the  Supreme.  Court  of  the  United  States 
has  been  delegated  the  ultimate  decision  of  ju 
dicial  questions  arising  under  the  constitution, 
laws,  rind  treaties  of  the  United  States;  and 
the  settled  adjudications  of  tha1  1ribnn.il,  in 
all  cases  in  which  it  has  jurisdiction,  mast, 
therefore,  be  universally  atrthor'itRtiVe  and  con 
clusive. 

Though  no  court,  composed  of  m^re  men, 
can  be  infallible,  and  though,  therefori-.  ' 
S u preme  Court  of  the  United  Slate-  may  err, 
and  doubtless  has  erred  more  than  once," still, 
all  things  fully  and  rightly  considered,  no 
morn  tit  or  safe  depository  of  this  ultimate 
power  of  judicial  decision  could  have  been  se 
lected.  The  judges  are  responsible,  like  all 
other  official  agents  of  the  people  of  the  Uni 
ted  States,  to  their  constituents:  and  that  re- 
spoinibility  is  one  of  the  many  yuarantie-  o! 
their  fidelity  and  rectitude.  Hitherto,  the 
judges  of  that  Court  have,  been  generally  di^ 
languished  for  personal  integrity  and  for  judi 
cial  learning,  and  might  justly  claim  ihe 
tribute  offered  in  the  ''Rom dad  to  judges  o 
England: 

"Kncli  judge  was  true.  Hi\d  steady  to  his  trust 
As  MANSFIELD  ivisc — a.--  OLD  FOSTKU  just." 

All  the  chief-jus! ice.p  of  the  Supreme  Court 
.iay,  and  EllsAvorth,  and  II utied ge,  and  Mar 
shall,  were  men  of  eminent  talent  and  services 
And  the  late  Chief  Justice  Marshall  did  nior 
to  exalt  the  character  of  the  American  bunch 
ami  to  illustrate  the  federal  consutution,  thai 
anv  other  American  citizen.  Ho  was  mor 
than  ihe  Lord  Cokes,  and  the  Lord  Bacon 
and  the  Lord  Hardwickes  of  England — h 


as  the  "John  Marshall  of  America;"  a  title 
ill  of  honor — another  and  an  immortal  name 
r  vigor  of  mind,  purity  of  heart,  moderation 
f  temper,  simplicity  of  character,  and  firm- 
ess  of  purpose.  May  the  universal  grief 

anifested  at  his  daatli  be  the  most  costly  of- 
riug  his  country  shall  ever  be  called  to  make 
t  his  hallowed  shrine.  May  the  remembrance 
f  his  virtues,  like  that  of  Washington's,  in- 
pire  a  sacred  respect  for  justice  and  a  pious 
eneration  for  the  constitution  of  hismanhood 
nd  his  tomb — and  may  that  constitution  live 
long,  as  pure,  and  as  fresh  as  the  memory 
f  its  chief  founder  and  builder — Washington 
nd  Marshall. 

The  federal  constitution,  popular   in  its  or- 
;-in, partly  federative  and  partly   national  in 
s  character]  and  altogether  national  in  its  ep- 
ration,  has  constructed  a  general  government 
f  delegated  powers.     Each  state  government 
ossesses  inherent  power;   restrained  only  by 
iielaws   of  nature  and  the  inhibitions  of  its 
wn  and  of  the  federal  constitution.     But  the 
•eneral  government  has  no  power,  except  such 
s  the  people  have  expressly  delegated,  or  such 
s  may  be  necessary  and  proper  for   effectua- 
ing  the  express  powers.     Certain   great  ends 
fere  contemplated  by  those  who  adopted  this 
onstitution,  raid,   to  accomplish  those   ends, 
hey  have  expressly  delegated  to   the  general 
j-overnment  specfic  powers,  and  also  have  de- 
larecl.  through  abundant  caution,  that  it  shall 
loseess  all  other  powers  that  shall  be  "neces- 
ary  and  proper"  to  carry  into  full  effect  the 
numerated  powers.     Without  this  precaution- 
.ry  declaration,  implied  or  incidental  powers 
would  have  necessarily  resulted  from  the  grant 
if  express  powers — for  it  is  an   axiom  of  rea-  • 
on  and  a   principle  of  universal   law,  that, 
rhen  a   power  is   expressly   granted  to  do  a 
hiiii; .  or  a  right  is  given,  all  subsidiary  powers 
leccssary  for  doing  the  thing  or  enjoying  th« 
•ight,  and  which  are  not  forbidden,  "are,   by 
leces^arr    implication,     also    granted.      Biit 
hese  implied  powers  must  be  both  necessary 
ind  proper.     When  a  mean   is  adapted  to  an 
:nd  designated  by  the  constitution  or  contem 
plated  by  its  founders,   it  if.,  in   the   political 
sense,  necessary.     Many  different  means  may 
>e.  and  generally  are,  well  adapted  to  the  same 
end,  and  eithei    of  them  may  be   selected;  for 
io  one   of  them  can  be  said   to  be  indispensa- 
<able    as  long  as  there  is  another  which  is  fit- 
ing,   and  which  might  answer  the   same  pur 
pose  or  effect  the  same  end.     And,    therefore, 
it  is  evident  that  "necessary'"  in  the  constitu 
tion,    or  when    spoken  of  in  reference  to  im 
plied    or   subsidiary  power,  does  not  meanin- 
peiiilabl^    necessary,  or  that  without  which 
alone  the  designated  end  could  not  be  accom 
plished — but  imports,  as  has  been   authorita 
tively  settled,  that  which  is  eligible  and  has  a 
clear  relation,  or  is  conducive  to  the  end.     But 
the  mean,  however  adaptable  to  the  end,  or  in 
other  words,  "necessary/'   must  also  be  "pro 
per" — that  is,  not  merely  that   which  may  be 

expedient for      that      would     convict  *  the 

convention  of  redundance  and  tautology,  and 
would  confound   expediency  and  power — but 


180 


INTRODUCTORY  LECTURE,  DELIVERED  IN 


that  which  i«  not  prohibited  by  the  constitu 
tion,  or  by  the  laws  of  mihire.  But,  as  what 
in  cans  may  be  "necessary  and  proper"  for  ef 
fectuating  express  powers  and  what  powers 
have  been  reserved  to  the  states  or  the  peo 
ple,  may  be  matter  of  doubt,  collisions  be 
tween  federal  and  state  authorities  may  be  ex- 
Fected  to  occu  r — as  they  h  ave  h  ith  erto  frequent- 
y  occurred.  A  mutual  temper  of  forbearance 
and  respect  should  be  displayed  in  such  deli 
cate  and  irritating  contingencies.  And  the 
fact  that  both  governments  equally  belong  to 
the  same  people,  one  acting  for  a  part  and  the 
other  for  the  whole,  should  surely  inspire  a 
just  confidence  and  a  becoming  spirit  of  liber 
ality.  But  if,  in  an  extreme  case,  there  must 
be  an  umpire,  the  federal  constitution,  as  long 
as  it  shall  remain  unrevoked  and  unmodified 
by  the  proper  authority,  and  either  in  the  mode 
prescribed  by  itself  or  by  revolution,  must  fur 
nish  the  only  lawful  means  of  authoritive  ad 
justment. 

Whether  in  this  new  and  complex  system 
of  government,  there  is  greater  danger  of  dis 
union  or  of  consolidation  is  a  question  con 
cerning  which  wise  and  honest  men  have 
differed  in  opinion  ever  since  the  federal  con 
stitution  was  first  proposed  for  adoption. 
General  Washington,  considering  the  more  in 
teresting  and  domestic  character  of  the  mass 
of  state  powers,  and  the  influence  of  local 
pride,  arid  interests,  and  attachments,  enter 
tained  the  opinion  that  the  natural  tendency 
of  the  system  would  be  centrifugal  rather  than 
centripetal.  And  such  would  seem  to  be  the 
more  rational  deduction  from  a  sober  and  en 
lightened  survey  of  the  whole  subject,  in  all 
its  ramifications,  unless  a  prostituted  press 
and  a  perverted  executive  patronage  should 
break  the  moral  ligaments  that  bind  the  people 
to  the  states.  Without  military  force,  these 
are  the  most  efficient  means  of  political  or 
practical  consolidation. — They  are  the  Lernaen 
monster  and  the  lion  of  Nemea,  which  Her 
culean  efforts  alone  can  overcome. —  Should 
they  ever  threaten  the  integrity  of  the  consti 
tution  or  the  liberties  of  the  country,  gener 
al  intelligence  and  virtue  can  alone  secure  the 
rescue  of  the  people.  Political  barriers  pos 
sess  their  efficacy,  which  is  great  and,  for  oc 
casional  and  ordinary  emergencies,  may  be 
sufficient.  But  their  chief  ralue  consists  in 
their  tendency  to  prevent  mischief  from  a 
transient  delusion  or  popular  effervescence. 
The  integrity  and  intelligence  and  patriotism 
of  the  body  of  the  people  are  the  surest  con 
servative  principles,  and  the  only  ones  which 
can  finally  save  the  people  from  their  common 
enemy — deceitful  demagogues — who  lire  and 
move  and  have  their  being  in  popular  credu 
lity,  prejudice  and  ignorance,  and  who  have- 
ever  been  the  cankers  of  every  popular  gov 
ernment  which  has  failed  on  earth.  The 
agents  of  the  people  will  be  but  seldom,  if 
ever,  honest  or  capable,  unless  the  people 
themselves  are  so;  nor  can  justice  and  security 

long  survive  the  loss  of  public  virtue  and  gen 
eral    intelligence.     Political   expedients    may 

save  for  a  season  until  the  people  have  time  to 


think  and  to  act  soberly;  but  a  people  inca 
pable  of  thus  thinking  and  acting,  when  suf 
ficient  time  is  allowed  them,  are  incapable  of 
self-government. 

"He  in  a  freeman  whom  the  truth  makes  free. 
And  all  are  slaves  besides." 

Our  institutions  are  founded  on  the  assump 
tion  that  the  mass  of  our  population  are  honest 
and  intelligent;  and,  that  hypothesis  being 
true,  our  governments  are  wisely  constructed 
and  may  last:  but  if  it  be  false,  or  should  ever 
cease  to  be  true^  passion  and  not  principle, 
power  and  not  right,  will  rule,  and  the  pocple 
will,  in  fact,  be  slaves,  The  form  of  govern 
ment,  whatever  it  may  be,  will  then  be  imma 
terial — and  it  was  in  this  view  that  Pope  said: 
"For  forms  of  government  let  fools  contest. 
That  which  is  best  administered  is  best." 

If  applied  to  an  ignorant  or  vicious  people, 
there  is  almost  as  much  truth  in  the  sentiment 
as  poetry  in  the  phrase. 

The  actual  government  will  correspond  with 
the  character  of  the  people  and  the  spirit  of  the 
timas.  But  when  the  majority  are  virtuous 
and  enlightened;  wise  distributions  of  power 
and  the  adoption  of  proper  fundamental  prin 
ciples  of  free  government,  such  as  those  which 
characterize  the  Anglo-American  constitutions, 
are  not  onlv  useful,  but  indispensable  as  safe 
guards  of  liberty  and  justice  in  transient  sea 
sons  of  popular  excitement  or  delusion;  and 
therefore,  in  such  a  community,  the  form  of 
government  is  important,  and  such  constitu 
tions  as  ours,  seem  to  be,  not  onlv  eligible, 
but  the  best.  How  long  they  will  continue 
to  be  so,  will  depend  on  how  long  the  peo 
ple  are  able  to  think  rightly  and  act  justly 
for  themselves.  Whilst  they  possess  this 
capacity,  our  constitution  will  deserve  all 
confidence  and  all  praise.  But  if  the  people 
become  ignorant  or  corrupt,  then  we  may  say 
in  sober  truth — "for  forms  of  government  let 
fools  contest" — for  whatever  the  form  may  be, 
the  substance  will  be  despotism — either  inob- 
ocratic,  oligarchic,  aristocratic,  or  solitary;  and 
among  these,  out  too  common  actual  govern* 
ments — "that  which  is  best  administered  is 
best." 

It  was  the  maxim  of  a,  wise  politician  and 
is  doubtless  true,  "that  when  the  body  of  the 
people  is  not  corrupted,  tumults  and  disorders 
do  no  harm;  and  where  it  is  corrupted,  good 
laws  do  no  good." 

But,  it  is  the  natural  tendency  of  free  and 
equal  civil  institutions  to  liberalize  and  elevate 
the  human  character;  and  thus  it  is  that  such 
institution  possess  inherently  a  conservative 
principle,  which,  by  an  indirect  and  reflex  op 
eration,  may  have  a  progressive  influence  in 
their  preservation  and  improvement. 

Municipal  law  is  that  which  defines  and 
regulates  the  civil  rights  and  duties  of  the  in 
dividual  members  of  the  bodv  politic,  or  na 
tion  or  state;  and  is  divisible  into  statute  law, 
the  common  law,  and  "the  civil  law"  or  ele 
ments  »f  Koman  jurisprudence.  3  n  this  land 
of  written  constitutions  and  limited  govern 
ment,  there  is  no  such  thing  as  an  authorita- 


THE  CHAPEL  OF  MORRISON  COLLEGE. 


181 


live  plebescite,  senatus  consultum,  imperial  re 
script,  orresponsum  predentum. 

The  common  law,  as  modified  by  our  stat 
utes  and  by  the  spirit  of  the  age,  and  of  our 
our  institutions — the  civil  law,  as  partially  in 
troduced  by  judicial  recognitions  and  applica 
tions  of  some  of  its  more  enlightened  and  con 
genial  principles — general  statutes  of  England 
which  hare  been  adopted  here,  and  such  en 
actments  of  the  national  and  local  legislatures 
as  are  consistent  with  constitutional  princi 
pies — constitute  the  only  authoritative  muni 
cipal  code  of  this  country. 

The  common  law  is  an  unwritten  code  of 
matured  reason,  of  obscure  origin  in  times  of 
great  antiquity,  in  the  north  of  Europe  and  in 
England — the  offspring  chiefly  of  the  feudal 
system — the  companion  and  friend  of  civil 
liberty,  strengthened  by  age,  and  improved 
and  improving  with  the  progress  of  civiliza 
tion  and  of  human  knowledge.  It  is  found 
only  in  the  reports  of  adjudged  cases,  in  ele 
mentary  law  books,  and  in  the  enlightened 
judgment  of  mankind.  It  is  practical  reason, 
rectified  and  recognized  by  me  experience  of 
ages,  and  modified  by  analogies  and  by  chang 
ing  circumstances. 

This  general  and  imperfect  definition  may 
be  sufficient  to  show  why  the  quality  of  malia- 
bility  has  been  ascribed  to  the  common  law; 
and  which  is  one  of  the  principle  constituents 
of  its  great  and  peculiar  value.  To  under 
stand  it  well  as  a  branch  of  science,  it  is  ne 
cessary  to  read  attentively  and  thoroughly,  not 
only  numerous  law  books,  but  also,  the  feudal, 
political  and  judicial  history  of  England;  and, 
to  know  how  to  apply  it  in  this  country,  the 
lawyer  and  the  judge  should  understand  our 
own  peculiar  institutions  and  policy.  In 
England,  the  common  law  has  been  applied 
inflexibly  to  real  estate,  or  immovable  proper 
ty.  But,  in  regard  to  personal  or  moveable 
property,  personal  contracts  and  equitable  ju 
risprudence,  the  doctrines  of  the  civil  law,  by 
gradual  judicial  interpolations,  has  obtained 
a  considerable  influence  and  prevalence;  and, 
to  this  extent,  no  code  of  human  law  was  ever 
more  enlightened  or  liberal  than  that  of  the 
civil  law,  as  embodied  by  Justinian,  and  since 
modified  and  improved. 

The  common  law  is  the  basis  of  the  civil 
polity  of  all  the  states  of  this  Union — except 
ing  only  Louisiana,  which  has  adopted  the 
civil  law — and  regulates  most  of  the  private 
rights  and  domestic  relations  of  those  states  in 
which  it  prevails.  The  «ttablished  rules  of 
pleading  in  suits,  in  courts  where  the  common 
law  prevails,  constitute  a  rational  and  beauti 
ful  science,  perfectly  simple  when  well  under 
stood,  though  extremely  vexatious  and  embar 
rassing  to  those  whose  acquaintance  with  them 
is  only  superficial. 

Equitable  jurisprudence,  transplanted  from 
the  civil  law,  has  been  engrafted  upon  the 
common  law,  and,  having  grown  with  its 
growth,  and  strengthened  with  its  strength,  has 
already  produced  a  blended  symmetn-  and  har 
mony,  which  a  new  and  simple  production  of 
no  age  could  erer  possess.  The  separate 


jurisdiction  of  tlie  courts  of  equity,  di 
vided  into  three  branches — exclusive,  concur 
rent,  and  auxiliary — is  an.  interesting  anoma 
ly,  peculiar  to  the  common  law,  originating 
chiefly  from  the  hyper-technicality  of  the  an 
cient  common  law  courts,  and  from  the  per 
tinacity  with  which  they,  in  defiance  of  the 
increasing  liberality  and  light  of  the  improv 
ing  world  around  them,  adhered  to  the  com 
paratively  rough  and  unyielding  feudal  doc 
trines  of  the  more  ancient  common  law.  The 
history  of  equity  is  full  of  interest;  but  this 
is  not  a  fit  occasion  for  even  an  outline.  We 
shall  barely  observe,  that,  though  the  chan 
cellor  of  England  had  originally  no  equitable 
jurisdiction,  but  acted  only  as  the  representa 
tive  of  the  king,  in  the  cancellation  of  letters 
patent,  in  the  superintendency  of  infants,  id 
iots  and  lunatics,  and  in  the  hearing  of  petitions 
— all  of  which  were  common  law  prerogatives 
of  the  crown,  as  par  ens  patriot;  and  though,  for 
sometime  after  the  chancellor  had  arrogated 
the  powers  of  a  court  of  equity,  and  even  since 
the  day  of  Woolsey,  his  decisions  were  regu 
lated  by  his  own  arbitrary  discretion  only; 
nevertheless,  since  the  controversy  between 
Chancellor  Ellesmereand  Lord  Chief  Justice 
Coke,  the  Nottingham's  and  HardAvick's,  arid 
the  Thurlow's  aud  Eldon's  of  England,  and 
the  Kent's  of  America,  have  harmonized  the 
principles  of  equity,  and  made  them  as  cer 
tain,  as  perfect,  and  as  authoritative,  as  those 
of  almost  any  other  science.  Now,  the  chief, 
and  almost  the  only  difference  between  a  court 
of  equity,  and  a  court  of  law,  is  merely  modal; 
that  is,  a  difference  in  the  mode  of  suit,  in  the 
mode  of  proof,  in  the  mode  of  trial,  and  in  the 
mode  of  relief.  In  both  courts,  the  same  con 
struction  is  now  given  to  laws,  and  to  con 
tracts,  and  both  are  equally  bound  by  au 
thority,  and  by  fixed  rules  and  principles. 
But  in  consequense  of  the  modal  differences 
which  have  been  suggested,  a  court  of  equity 
may,  in  many  cases,  such  as  those  of  fraud, 
trust,  accident,  the  specific  permormance  of 
contracts,  etc.,  be  more  able  than  a  court  of 
law  to  reach  the  full  measure  of  justice  and 
give  adequate  and  perfect  relief.  And  courts 
of  equity  have  also,  to  a  greater  extent  than 
courts  of  law,  in  some  classes  of  cases,  and  es 
pecially  in  respect  to  trusts,  and  the  marital 
relation,  and  its  incidental  rights  and  obliga 
tions,  adopted  many  of  the  more  approved 
principles  of  the  civil  law. 

A  court  of  equity  here  has  not  all  the  power 
of  the  Chancellor  of  England;  it  possesses 
only  his  equitable  jurisdiction,  with  some 
statutory  modifications  and  enlargements.  Al 
though  courts  of  law  might,  with  propriety, 
proceed  according  to  the  modes  prescribed  in 
courts  of  equity,  yet,  until  they  shall  feel  au 
thorized  to  do  so,  equity  will  remain  a  distinct 
branch  of  jurisprudence.  There  is  no  good 
methodical  treatise  on  the  principles  of  equity ; 
and,  therefore,  that  branch  of  law  is  not  so 
generally,  nor  so  easily  understood  as  other 
departments  of  the  positive  law;  but  it  is 
equally  simple  and  scientific,  and  when  well 
understood,  equally  plain  and  elementary.  Its 


182 


INTRODUCTORY  LECTURE,  DELIVERED  IK 


nwin  foundations  arc  the  immutable  principles 
of  universal  justice;  and  its  history  and  pre 
sent  state,  nnd  its  benign  influence  upon  gen 
eral  jurisprudence,  present  :t  most  illustrious 
example  of  an  adventurous,  but  beneficial,  ju 
dicial  legislation,  sustained  by  the  gradually 
increasing  light  of  civil  and  religious  liberty, 
and  by  the  various  promptings  of  social  and 
commercial  prosperity. 

The  civil  law  of  Rome  has,  in  a  greater  or 
less  degree,  been  interwoven  with  the  body  of 
the  legal  codes,  as  the  language  of  Rome  has 
been  mixed  Avith  the  modem  tongues,  of  most 
of  the  nations  of  the  continent  of  Europe. 
And  thus  the  prostrate  city  of  the  Cuesars  Htill 
lives  and  reigns,  and  will  long  live  and  reign, 
over  a  moral  empire  more  extensive  than  the 
imperial  domain  of  the  deified  Augustus. 
And,  though  the  civil  code  is  not  authoritative 
here,  nevertheless  as  it  has  furnished  princi 
ples  which  have  been  embodied  into  our  equit 
able  jurisprudence  and  our  commercial  law, 
and,  in  some  degree,  into  our  laws  respecting 
legacies  and  distributions,  and  other  laws  re 
lating  to  personal  property  and  personal  con 
tracts — every  American  jurist  should  be  ac 
quainted  witli  its  elements  and  general  spirit. 
It,  is,  in  some  respects,  an  admirable  system, 
not  only  unsurpassed,  but  unequalled.'  And 
no  man' altogether  unacquainted  with  its  prin 
ciples  can  be  a  scientific  lawyer,  or  enlighten 
ed  jurist.  The  common  law,  not  only  has 
been  greatly  improved  by  ;v  commixture  with 
the  civil  law,  but  is  yet  susceptible  of  still 
more  improvement  by  the  same  process.  Our 
institutions  and  habits  of  thought  and  of  ac- 
lion  designate  the  United  States  a.s  the  theatre 
on  which  the  common  law  is  destined  to  at 
tain  its  greatest  ultimate  perfection,  when  the 
gray-headed  mother,  .England,  will  learn  juris 
prudence  from  her  young  daughter.  Xorth 
America,  as  she  even  now  begins  to  learn  *ome 
other  things  which  maternal  pride  has  not  ac 
knowledged. 

This  very  imperfect  sketch  of  an  equally 
imperfect  analysis  of  law  maybe  sufficient  to 
give  some  faint  conception  of  the  vast  extent 
of  its  domain,  and  to  prove  aUo,  that  it  is 
eminently  entitled  io  a  conspicuous  place 
among  the  useful  sciences.  In  its  vast  and 
almost  intorminablo  periphery,  iv  embraces  all 
the  affinities  of  matter  and  all  the  sympathies 
and  aptitude  of  mind — it  defines  and  regu 
lates,  and  guards  all  the  relations  of  man, 
social  and  civil.  It  protect*  the  weak  and 
controls  the  strong;  itgives  confidence  to  in 
nocence,  and  alarm  to  guilt;  it  is  the  poor 
man's  earthly  prop,  the.  rich  inan'«,  Direst  ram 
part;  the  vfidow's  champion;  the  orphan's 
friend  and  guide;  it  regards  and  upholds  all 
that  is  most  interesting  or  uild earing  on  earth, 
and  places  mankind  in  a  condition  to  aspin:  to 
their  high  nnd  noble  destiny,  and  to  occupy 
ih<:ir  proper  place  in  the  created  universe.  i"o 
human  science  is  no  extensive  in  its  rani;- ,  or 
embraces,  within  ii»  scope,  su  many  and  such 
interesting  objects  and  relations.  Withou;  uni 
versal  law,  the  world  would  be  H  vast  ruin; 
without  rational  law,  nations  would  beenemie 


and  pirates;  without  municipal  law,  men  would 
be  beasts  of  prey,  and  women  their  victims; — 
unless  by  the  universal  prevalence  of  true  re 
ligious  principles  a  theocracy  should  super 
sede  all  human  institutions,  and  govern  all 
human  conduct.  Positive  law  is  not  a  perfect 
science,  because  nothing  partaking  of  human 
frailty  can  be  perfect.  All  positive  law  ha* 
some  anomalies,  and  in  some  particulars  may 
3e  altogether  arbitrary  and  irrational.  But,  lis 
a  whole,  it  is  founded  on  eternal  principles  of 
fitness,  and  is  susceptible  of  infinite  extension 
analogy  and  induction.  It  is  intimately 
associated,  with  all  other  sciences,  and  has 
some  connection  with  every  branch  of  human 
knowledge.  Without  ityno  other  science  could 
exist,  or  be  useful;  and  no  one,  whose  mind  is 
not  illumined  and  invigorated  by  general 
knowledge,  can  ever  understand  civil  juris 
prudence  thoroughly,  or  perceive  all  its  har 
monies  and  beauties,  as  a  comprehensive  and 
practical  system  of  truth — of  pre-eminent  util 
ity,  unsurpassed  excellence,  and  indefinite  ex 
pansibility. 

Among  the  many  wonderful  advances 
which  have  been  made,  during  the  last  fifty 
ycaiv,  in.  knowledge,  practical  and  specula 
tive,  ihe  improvements  in  jurisprudence  have 
been  conspicuous.  Europe  has  already  be 
gun  to  exhibit  some  practical  acquaintance 
with  the  true  principles  of  legislative  philoso 
phy;  and  even  in  England,  the  common  law, 
feeling  the  renovating  spirit  of  the  age,  is  be 
coming  more  and  more  malliable,  and  is  ex 
changing  its  old  fashioned  and  unseemly  cos 
tume  for  a  more  modern  and  befitting  drapery. 
Sound  philosophy  is  operating  on  jurispru 
dence  as  beneficially  as  on  any  other  depan- 
rnent  of  knowledge"  and  has  much  yet  to  do 
in  the  progressive  improvement  of  a  science  so 
comprehensive  and  complex.  But,  as  long  as 
human  laws  are  necessary,  and  wherever  civ 
il  liberty  prevails,  simplicity  can  never  be  one 
of  the  attributes  of  jurisprudence.  Much 
good  may,  and  doubtless  will,  be  done  by  re 
daction;  but  simple  and  perfect  modification  is 
hopeless  and  visionary.  Simplified  to  the  ut 
most  extent  Avhich  prudence  or  safety  would 
allow,  the  science  of  law  must  nevertheless 
still  continue  to  be,  its  it  uo\v  is,  though  in  a 
less  deorroe,  com  p;ir;\  lively  intricate  and  ex 
tensive:  and  it  can  never  be  thoroughly  un 
derstood,  without  laborious  and  protracted 
study,  and  extraordinary  vigor,  and  perspi 
cacity,  and  cultivation  of  mind. 

"Wise  institutions,  ami  a  stable  a  adjust  ad 
ministration  of  the  law,  are  some  of  th«  contri 
butions  which  minds  enlightened  in  the  sci- 
enc1'  oi"  jurisprudence  have  made,  and  which 
such  minds  can  alone  make,  in  all  time,  to  the 
Wflf.tre  of  mankind.  It  is  to  such  minds  that 
society  i&  indebted  for  the  confidence,  securi 
ty,  nnd  peace  with  which  it  may  be  blessed 
bv  irood.  government  and  wholesome  laws, 
justly  administered.  Virtuous  and  enlight 
ened  jurists  are  the  peculiar  guardians  of  the 
commonwealth,  because  law  is  the  panoply  of 
all  that  is  yiost  cherished  and  endearing 
among  men.  Vrithout  good  laws*,  honestly 


THE  CHAPEL  OF  MDREISOK  COLLEGE. 


183 


administered,  there  could  be  no  security  for 
life,  liberty,  reputation  or  property.  LAW 
and  RIGHT  are  the  body  and  soul  of  civil 
liberty. 

Civil  jurisprudence  is  illustrated  by  a  long 
roll  of  honored  names — the  names  of  law-giv 
ers  and  jurists,  in  different  countries  and  ages, 
admired  for  pre-eminent  talents,  and  ever  to 
be  revered  as  benefactors  of  mankind.  And, 
on  its  broad  escutcheon,  we  see,  beaming  with 
a  chaste  and  hallowed  light,  the  names  of 
Cicero,  of  Solon,  of  Daggessau,  of  Pothier,  of 
Grotius,  of  Vattel,  of  Littleton,  of  Coke,  of 
Bacon,  of  Hale,  of  Mansfield,  of  Blackstone,  of 
Erskine,  of  Adams,  of  Jefferson,  of  Jay,  of 
Boyle,  of  Marshall — and  a  multitude  of"  oth 
ers,  equally,  or  almost  as  much,  distinguished, 
both  in  the  old  and  in  the  new  world — all  of 
them  men  unsurpassed  in  intelligence  and 
usefulness,  by  any  equal  number,  in  any  oth 
er  department  of  knowledge,  or  sphere  of  ac 
tion.  And  our  own  brief  history  is  embla 
zoned  with  the  names  of  distinguished  ju 
rists,  without  whose  enlightened  counsel  our 
liberties  could  never  have  been  established, 
nor  our  free  institutions  constructed  or  main 
tained.  A  chaste  and  mellow  light  shines 
around  the  names  of  John  Adams,  Thomas 
Jefferson,  John  Jay,  Roger  Sherman,  Patrick 
Henry,  Alexander  Hamilton,  and  a  host  of 
other  eminent  and  patriotic  lawyers — the 
light  of  whose  intelligence,  the  fire  of  whose 
patriotism,  and  the  burning  eloquence  of 
whose  pens  and  whose  tongues  cheered  and 
guided  their  desponding  countrymen,  in  their 
dark  and  perilous  pathway,  to  constitutional 
liberty  and  law.  Then  may  we  not  conclude 
that  jurisprudence  is  a  noble  science,  and  that 
a  virtuousfand  enlightened  jurist  h,  an  orna 
ment  and  an  honor  to  his  race? 

Our's  being  emphatically  governments  of 
laws,  and  our  liberties  and  rights  depending, 
as  they  do,  on  the  wisdom  and  efficacy  of  con 
stitutional  arid  legal  guarantees,  there  is  no 
country  on  earth  Avhere  a  thorough,  extensive, 
and  general  knowledge  of  the  elements  of  en 
lightened  jurisprudence  may  bo  so  useful,  or 
can  be  so  indispensable  to  the  welfare  of  men, 
and  the  stability  and  authority  of  just  and 
equal  institutions.  The  supremacy  of  good 
laws  will  ever  save  us;  the  predominancy  of 
passion,  or  of  rank,  or  of  ambition,  will  de 
stroy  the  only  shield  of  our  rights. 

]t  is  strange  that  a  science  of  such  extent 
and  importance — so  intimately  associated  with 
all  that  is  interesting  to  social  man  on  earth, 
.so  exalted  in  dignity,  so  purifying  and  enno 
bling  in  tendency,  and  so  universal  in  its  in- 
tluence  on  all  civili/ed  men,  in  every  relation, 
and  under  every  circumstance,  should  not 
have  generally -been  made  a  branch  of  acade 
mical  education,  and  been  taught  where  other 
sciences  are  usually  learned.  Every  free  man, 
iu  a  free  state,  should  be  acquainted  with  the 
elements  of  general  jurisprudence,  and  with 
the  spirit  and  character  of  the  peculiar  insti 
tutions  of  his  own  country.  Such  elementary 
knowledge  may  be  acquired  in  the  course  of 
ordinary  scholastic  education;  and,  in  these 


states,  a  knowledge  of  atleaxt  our  own  funda 
mental  laws,  should  be  deemed  indispensable 
to  every  citizen,  and  should,  of  course,  be 
taught  in  every  common  schowl. 

But  it  is  peculiarly  important  that  those 
who  arc  destined  for  the  bar,  the  bench,  or  the 
hall  of  legislation,  should  be  thoroughly  im 
bued  with  that  kind  of  knowledge  Avhich  is 
founded  on  the  elements  of  a  virtuous  and  en 
lightened  philosophy,  and  to  the  proper  acqui 
sition  of  which,  toil,  and  system,  and  talents, 
and  probity,  are  indispensable.  ]$o  class  of 
men  exercise  more  influence  on  society,  than 
the  professional  lawyers.  Their  predominant 
influence  is  felt  in  all  the  business  and 
walks  of  life,  as  well  as  in  the  forum,  the 
legislative  hall,  and  the  arena  of  popular  pol 
itics.  How  all  important  then,  is  it,  to  the 
vital  interests  of  the  commonwealth,  that  our 
lawyers  should  be  men  of  enlarged,  and  lib 
eral,  and  virtuous  minds;  purified  and  en 
lightened  by  the  moral  light  of  thorough, 
general,  and,  as  far  as  possible,  universal  sci 
ence.  Until  our  western  lawyers  shall  be 
thus  enlightened,  we  shall  not  have  among  us 
many  Mansfields,  Erskines,  Marsh  alls,  Web- 
sters  or  Clays. 

Ignorant  or  unprincipled  lawyers  are  among 
the  most  miachievous  nuisances  which  can 
annoy  the  peace  and  disturb  the  well-being1 
of  the  body  politic.  But  virtuous  and  en 
lightened  jurists  are  a  blessing  to  any  people. 
Even  in  the  administration  of  law  in  courts  of 
justice,  the  value  of  honest  and  able  profes 
sional  counsel,  is  almost  incalculable;  and  the 
direct  and  indirect  influence  of  such  moral 
agency,  on  public  arid  private  rights,  and  on 
the  spirit  of  litigation,  is  much  greater  than  is 
generally  supposed.. 

A  lawyer  is  a  pettifogger,  as  a  doctor  is  a 
quack,  unless  he  understands  the  science  of 
his  profession.  Such  scientific  knowledge  is 
not  as  common  among  the  professional  men  of 
this  great  valley  of  the  west,  as  the  best  inter 
ests  of  the  people  and  of  science  require  that 
it  should  be.  Thorough  and  systematic  ele 
mentary  education  is  important,  and  will  be 
soon  seen  to  be  indispensable.  Such  an  edu 
cation  can  but  seldom,  if  ever,  be  expected  in 
the  common  course  of  reading  in  a  lawyer's 
office.  This  has  been  felt  and  acknowledged, 
even  in  England,  where  the  training  of  young 
men  for  the  bar  is  more  severe  arid  systematic, 
in  the  offices  and  inns  of  court,  than  it  lias 
generally  been  in  this  country.  We  find  the 
following  language  in  the  introductory  lecture 
of  Mr.  Park,  professor  of  English  law  and  ju 
risprudence  in  the  King's  college,  London: 
"Few  things  will  bear  less  looking  into  than 
the  system  of  legal  education  hitherto  pre 
vailing — and  if  the  public  at  large  could  see 
it  in  its  real  nakedness,  common  sense  and 
safety  would  alike  dictate  that  such  culpable 
neglect  should  no  longer  be  permitted  to  in 
sult  society,  and  set  at  naught  the  deep  inter 
ests  that  are  at  stake  in  the  proficiency  of 
those  who  offer  themselves  to  the  public  as  le 
gal  practitioners.  A  great  number  of  young- 
men  are  annually  let  loose  upou  the  public, 


184 


INTRODUCTORY  LECTURE,  DELIVERED  IN 


calling  themselves  solicitors,  and  barristers, 
and  conveyancers,  and  having  personal  claims 
upon  many  to  be  intrusted  with  their  busi 
ness,  who  have  given  no  other  security  to  the 
public,  for  their  having  qualified  themselves 
for  a  most  important  and  arduous  profession, 
than  that  of  having  paid  a  certain  sum  of 
money  for  articles  of  clerkship,  or  having  pur 
chased  the  name  of  pupil  in  the  chambers  of 
some  practitioner.  Upon  the  present  system, 
scarcely  one  in  every  live,  has  a  single  chance 
of  attaining  that  proficiency  that  would  enable 
him  to  keep  practice,  eren  should  he  be  so  for 
tunate  as  to  obtain  it."  But  even  more  may 
be  said  of  the  common  defects  in  the  usual 
course  of  legal  education  in  this  country. 
Here,  where  there  are,  much  to  our  discredit 
and  disadvantage,  but  few  scientific  lawyers, 
young  men  of  ordinary  capacities,  without  the 
advantage  of  preparatory  education,  read  a 
few  books,  selected  either  by  themselves  or  by 
the  advice  of  some  practising  attorney,  and,  in 
a  few  months  or  weeks,  without  any  system 
atic  instruction  or  general  examinations,  and 
before  it  is  possible  they  can  have  learned  the 
A  B  C  of  jurisprudence  as  a  science,  obtain 
licenses  and  offer  themselves  as  learned  coun 
sellors,  in  one  of  the  highest,  most  important, 
and  most  difficult  of  the  learned  professions. 
What  can  be  the  consequence  of  such  a  course, 
but  great  mischief  to  society,  and  the  unjust 
degradation  of  the  law,  and  of  jurisconsults, 
as  a  professional  class?  And  hence,  the  juris 
prudence  of  the  west  has  not  obtained  that 
exalted  rank  which  the  general  character  and 
prospective  influence  of  the  Mississippi  valley 
would  seem  to  indicate. 

The  law  must  be  considered  as  a  science  of 
infinite  amplitude  and  importance,  and  must 
be  taught  and  studied,  like  other  sciences, 
with  a  system,  an  interest,  nnd  a  patience, 
corresponding  with  its  magnitude,  utility,  and 
destiny.  This  cannot  be  done  in  any  other 
mode,  so  certainly  and  effectually,  as  in  regu 
larly  organized  schools,  where  system  and 
science  prevail. 

Prior  to  the  institution  of  the  Vinerian  pro 
fessorship  at  Oxford  in  England,  law  was  con 
sidered  but  a  rude  art,  to  be  acquired — in  the 
language  of  Thomas  Wood,  who  wrote  his  In 
stitutes,  about  the  year  1725 — "by  a  long  at 
tendance  on  the  highest  courts  of  justice,  and 
by  a  tedious  wandering  about" — and  contain 
ing  "a  heap  of  good  learning,  which  he  hoped 
it  would  not  be  impossible  to  assort,  and  put 
into  some  order."  But  \inder  the  auspices  of 
an  university,  where  science  was  taught, 
Blackstone,  who  was  the  first  Vinerian  pro 
fessor,  reduced  the  laws  of  England  to  the 
system  and  order  of  a  beautiful  science.  And 
since  the  publication  of  his  lectures,  under  the 
title  of  commentaries,  even  positive  law  has 
been  justly  deemed  a  science,  and  has  been 
wonderfully  simplified  and  improved.  Those 
commentaries  have  themselves  been  pro 
nounced  by  Sir  Win.  Jones,  in  his  admirable 
Treatise  on  Bailment,  to  be  "the  most  correct 
and  beautiful  outline  that  was  ever  exhibited 
of  any  human  science."  But  they  exhibited 


only  the  outline  of  a  vast  and  cultivated  terri 
tory  of  judicial  scrence.  Aud  it  was  under 
the  like  auspices  and  circumstances,  that  the 
similar  work  of  Chancellor  Kent  of  America 
was  produced — a  work  that  will  be  an  useful 
cynosure  to  the  American  student. 

Moreover,  it  is  known,  that  the  civil  law 
was  introduced  and  taught,  in  the  universities 
of  England,  by  the  clerical  professors;  and 
Humev  in  the  23d  chapter  of  his  history  of 
England,  has  said  truly,  that  it  was  by  this 
means,  that  the  common  law  was  "raised  from 
its  original  state  of  rudeness  and  imperfec 
tion." 

And  why  should  not  jurisprudence  bo 
taught  as  other  sciences  are  taught?  "To  dis 
incorporate  any  particular  science  from  gen 
eral  knowledge,  is  one  great  impediment  to 
its  advancement;  for  there  is  a  supply  of  light 
and  information,. which  the  particxilars  and  in 
stances  of  one  science  yield  and  present  for 
the  framing  and  correcting  the  axioms  of  an 
other  science  in  their  very  truth  and  notion;  for 
each  particular  science  has  a  dependence  upon 
universal  knowledge,  to  be  augmented  and 
rectified  by  the  superior  light  thereof."  This 
was  the  opinion  and  language  of  Lord  Bacon, 
who  did  as  much  for  science  as  any  man  who 
ever  lived.  And  his  opinion  has  been  con 
firmed  by  experience;  for  wherever  law  has 
been  taught  as  a  branch  of  scholastic  educa 
tion,  it  has  been  more  scientifically  and  per 
fectly  learned,  and  has  been  "augmented  and 
rectified  by  the  superior  light  of  universal 
knowledge." 

The  pupil  derives  many  and  obvious  ad  van  - 
tages  from  studying  law  systematically  in  a 
public  institution  of  learning.  In  such  an  in 
stitution,  judiciously  and  faithfully  conducted , 
he  wastes  no  time  or  toil  in  unprofitable  read 
ing.  The  best  text  books  are  selected  for  him : 
he  is  led  on,  day  by  day  and  step  by  step,  from 
the  more  simple  elements  to  the  abstruse  and 
subtle  doctrines  of  law;  his  path  is  illumina 
ted  and  progress  facilitated,  oy  frequent  pro 
fessional  examinations,  illustrations  and  lec 
tures;  by  which,  obscurities  are  cleared  away, 
absurdities  and  incongruities  satisfactorily  ex 
plained,  and  all  the  doctrines  and  authorities 
gleaned  by  the  professor,  from  all  his  legal 
reading  and  research,  are  brought,  at  once,  in 
telligibly  to  the  understanding;  and  this  last 
alone  must  be  felt  to  be  a  circumstance  of 
great  utility,  when  it  is  recollected,  that  all 
this  professional  knowledge  is  to  be  obtained 
from  hundreds  of  volumes  of  books,  and  can 
be  acquired  only  by  the  study  and  practice  of 
years.  In  addition  to  these,  and  other  peculiar 
advantages  which  we  shall  not  enumerate,  an 
other,  and  not  the  least,  is  the  industry  and 
emulation  that  will  be  excited  by  an  associa 
tion  of  young  men  of  talents  in  the  same  class, 
pursuing  the  same  studies  together,  and  all 
candidates  for  the  honors  of  the  same  institu 
tion  of  learning.  And,  although  the  knowl 
edge  thus  to  be  imparted,  is  only  elementary 
and  initiatory,  yet  we  believe  that,  such 
knowledge,  thus  acquired,  will  lay  the  only 
broad  and  sure  foundation  for  successful  pro- 


THE  CHAPEL  OF  MORRISON  COLLEGE. 


185 


gress  in  the  science  of  jurisprudence,  or  for 
ultimate  usefulness,  or  honorable  distinction. 
And  we  trust  that  the  law  department  of 
Transylvania,  will  never  be  degraded  by  its 
professors,  or  its  pupils;  and  may  we  not  be 
permitted  to  hope,  that  this,  our  own  cherished 
Alma  Mater  may,  in  all  her  departments,  soon 
be  resuscitated  and,  once  more,  become  the 
pride  of  the  west?  Her  fate  depends,  in  no 
inconsiderable  degree,  on  the  conduct  of  her 
sons.  They  may  reflect  honor,  and  raise  her, 
or  bring  shame  and  sink  her,  in  the  opinion  of 
a  scrutinizing  public;  and  none  of  those  who 
will  be  nourished  at  her  breast,  will  have 
more  influence  on  her  destinies  than  the  pupils 
of  her  law  department.  Remember  then, 
young  gentlemen,  that,  in  these  academic 
halls,  you  will  only  be  initiated  into  a  bound 
less  science,  and  that  true  professional  emi 
nence  can  be  attained  only  by  extensive  learn 
ing,  virtuous  habits  and  pure  principles.  Re 
member  your  obligations  to  this  institution,  lo 
yourselves,  to  your  friends,  to  your  profession, 
and  to  your  country.  The  habits  and  princi 
ples  which  may  be  here  acquired,  may  fix 
your  characters  forever.  If  it  should  be  your 
fortunes  to  be  lawyers,  judges  or  legislators, 
remember  that  knowledge,  arid  much  and  vari 
ous  knowledge,  will  be  necessary  for  the  hon 
orable  discharge  of  your  duties;  and  may  none 
of  you — whatever  or  wherever  you  may  be — 
ever  forget  that:  "An  honest  man's  the  noblest 
work  of  God." 

The  moral  and  political  influence  of  the 
west  is  even  now  sensibly  felt,  and  will  soon 
become  preponderant.  This  valley  of  Hope 
exhibiting,  in  its  infancy,  so  much  of  moral 
interest  and  native  moral  power,  is,  we  think, 
destined,  in  its  maturity,  to  be  the  best  theater 
ever  presented  on  earth",  for  the  development  of 
intellectual  resource,  and  for  the  establishment 
of  moral  and  political  TRUTH.  Those  who  are 
shortly  to  act  upon  it,  as  lawyers,  and  judges, 
24 


and  legislators,  will  occupy  stations  peculiarly 
conspicuous  and  responsible.  We  believe  that, 
here  the  pure  vestal  light  of  truth  is  to  shine, 
if  it  is  ever  to  live  among  men — that  here,  if 
any  where,  civil  liberty  is  to  be  established  and 
preserved — that  here,  the  decisive  moral  battle, 
now  evidently  commenced,  is  to  be  lost  or  won, 
forages;  and  that,  in  this  new  world,  jurispru 
dence  is  to  be  brought  to  its  utmost  perfection, 
and  elevated  to  its  true  dignity. 

The  law  is  the  accustomed  pathway  to  po 
litical  influence  and  distinction.  May  those 
of  you,  whose  fortune  it  may  be  thus  to  rise, 
deserve  public  confidence.  Always  vindicate 
the  law's  just  supremacy,  and  especially  defend 
the  rightful  supremacy  of- the  federal  constitu 
tion  and  the  union  and  harmony  of  the  states. 
Any  one,  at  all  acquainted  with  the  history  of 
that  constitution,  and  AVith  the  history  and 
character  of  men,  must  see  that,  if  the  existing 
Union  should  ever  be  destroyed  by  dissolution 
or  consolidation,  it  will  never  be  re-established. 
Even  now  the  safety  of  the  constitution  and 
the  integrity  of  the  Union  are,  in  the  opinion* 
of  many  wise  and  good  men,  menaced  by  the 
licentious  spirit  of  disorganization,  and  the 
factious  influence  of  selfish  politicians.  Moral 
light,  and  that  alone,  can  surely  save — and  we 
trust  that  it  will  be  speedily  diffused,  so  gener 
ally  and  effectually,  as  to  rescue  and  preserve, 
in  this  distinguished  land*  the  principles  of 
sound  morality,  pure  religion,  and  enlightened 
law. 

May  it  be  your  lot,  gentlemen,  to  be  efficient 
and  useful  actors  in  the  eventful  scenes  that 
are  coming.  May  it  b«  your  fortune  to  share 
the  honors  and  the  blessings  of  a  glorious 
triumph  for  our  country  and  mankind;  and 
may  you  so  act,  here  and  hereafter,  as  to  reflect 
honor  on  this  institution,  exhalt  the  character 
of  the  west,  and  shed  lustre  on  American  juris 
prudence. 


PRELECTION. 


Lexington,  Nov.  13th,  1836. 
To  THE  HON.  GEORGE  ROBERTSON, 

SIR, — We  have  the  honor  of  expressing  the  thanks  of  the  Law 
Class,  for  the  very  able  and  appropriate  Introductory  Lecture  delivered  by 
you  in  the  Chapel  of  the  University,  on  the  12th  inst.,  and  of  requesting 
a  eopy  of  the  same  for  publication. 

Having  shared  the  high  gratification  of  hearing  your  Lecture,  we  take 
great  pleasure,  in  pursuance  of  their  desire,  in  makingthis  application. 
We  have  the  honor  to  be,  with  the  highest  consideration, 

Yours,  &c.,  THOS.  A.  MARSHALL,  Jr. 

JOHN  TITUS, 
A.  J.  LAFON, 
CALEB  M.  MATHEWS. 


Lexington,  Nov.  13th,  1836. 

GENTLEMEN, — As  my  late  Introductory  Lecture  was  intended  for  the 
benefit  of  the  Law  Class  of  Transylvania,  it  is  at  their  disposal;  and  I 
am  pleased  to  learn  from  your  polite  note  of  the  13th  inst.,  that  it  was 
deemed  satisfactory. 

Accept  for  yourselves  and  for  the  class  my  acknowledgments,  for  such 
a  testimony  of  approbation,  and  an  assurance  of  the  perfect  good  will  of 

Your  and  their  friend, 

G.  ROBERTSON, 
Messrs.  Marshall,  Titus,  Lafon,  and  Mathews. 


ADDRESS. 


HAVING,  in  our  last  Introductory  Lecture, 
given  a  very  general  analysis  of  the  nature  of 
LAW,  and  comprehensive  classification  of  its 
elements,  we  shall,  in  this  address,  attempt  a 
more  particular  consideration  of  the  most  in 
teresting  branch  of  American  Jurisprudence 
— the  political  organization  of  the  North 
American  Union.  This,  also,  being  limited 
by  the  occasion,  will  necessarily  be  summary 
and  imperfect,  and  will,  therefore,  only  em 
brace  an  outline  of  a  cireumstribed  view  of  the 
origin  and  nature  of  the  Federal  Constitution, 
and  of  the  only  means  of  preserving  unim 
paired,  and  of  rendering  most  effectual,  the 
peculiar  fundamental  institutions  of  our  com 
mon  and  much  distinguished  coTintry. 

The  lapse  of  the  last  eighteen  hundred  and 
thirty-six  years,  has  not  been  marked  by  an 
event  more  interesting  to  mankind,  than  the 
adoption  of  their  national  constitution  by  the 
people  of  the  North  American  States.  The 
affairs  of  men,  like  the  phenomena  of  the 
physical  world,  being  controlled  by  instru 
mentalities  progressively  developed  in  the  on 
ward  course  of  an  immutable  Providence,  en 
lightened  philanthropy  looks  back  on  the 
Lutheran  Reformation — the  invention  of  the 
Printing  Press — the  discovery  of  the  Magnet's 
polarity — the  transatlantic  voyage  of  Colum 
bus — the  discovery  of  America — its  coloniza 
tion — the  persecutions  which  contributed  to  its 
civilization — and  the  civil  Re  volution  of  "76," 
which  liberated  its  northern  half  from  the  do 
minion  of  European  priests  and  monarchists — 
not  only  as  among  the  causes,  pre-ordained 
by  a  wise  and  benignant  God,  for  the  regener 
ation  of  man,  but  as  pioneers  appointed  by 
Heaven  for  leading  the  way  to  the  Ark  of  civ 
il  and  religious  liberty,  constructed  by  the 
people  of  these  States,  in  1788,  for  themselves, 
and,  as  we  hope,  for  all  posterity,  if  this 
last  and  best  experiment  for  the  consolidation 
of  human  rights,  and  the  exaltation  of  human 
destiny,  made  and  still  progressing  in  an  age 
and  in  a  land  most  propitious  to  success,  shall, 
like  all  that  have  gone  before  it  at  last  fail, 
the  cause  of  Democracy  must  be  discredited 
and  degraded  in  the  opinion  of  mankind.  But 
the  simple  fact  that  such  an  experiment  has 
been  tried  in  such  a  country  and  at  such  a 
time,  and  has  so  far  succeeded,  stands  before 
the  admiring  world  a  pyramid  of  strength  to 
the  friends  of  equal  rights;  and  the  spangled 
banner  of  our  Union;  though  waving  yet  alone 
on  its  peerless  top,  encourages  all  men,  of 
every  country  and  clime,  to  aspire,  at  a  pro 


per  time  and  in  a  becoming  manner,  to  a  r«- 
storation  and  firm  establishment  of  their  long 
lost  privileges.  As  long  as  this  tower  shall 
stand  and  this  flag  shall  still  wave — civil  and 
and  religious  liberty,  with  all  their  countless 
blessings,  ar?  sure  and  safe.  But  let  the 
American  bulwark  sink  and  the  American 
emblem  fall — and  with  them  must  perish  for 
a  time,  if  not  forever,  the  dearest  rights  and 
most  cherished  temporal  hopes  of  Christian  or 
civilized  man.  Civil  and  religious  liberty  are 
indissolubly  associated.  One  connot  exist  se 
curely,  if  at  all,  without  the  guardian  com 
panionship  of  the  other. 

Until  both  shall  universally  prevail,  man 
Can  never  attain  his  proper  rank  in  the  scale 
of  being,  or  his  ultimate  destiny  upon  earth. 
And  looking,  with  either  a  Christian  or  philo 
sophic  eye,  on  the  progress  of  events  for  ages 
past,  we  have  some  reason  for  cherishing  the 
hope  that  our  favored  land  is  the  preparatory 
theatre,  and  our  civil  institutions  the  initial 
means  intended  by  an  overruling  Providence 
for  establishing,  in  all  time  to  come,  and  for 
extending  throughout  the  world,  human  liber 
ty,  human  happiness,  and  human  glory.  The 
union  and  harmony  of  these  confederate  States, 
and  the  consequent  prevalence  of  the  federal 
constitution,  are  indespcnsable  to  the  enjoy 
ment  and  security  of  our  liberty  and  peace. 
For  both  reason  and  history  proclaim,  as  an 
axiomatic  truth,  the  political  aphorism  of  our 
whole  country: — "UNITED  we  stand— DI 
VIDED  we  fall!" 

It  is  under  the  influence  of  such  sentiments 
and  such  prospects,  that  we  feel,  in  all  its 
magnitude,  the  peculiar  great  comparative  im 
portance  to  mankind  of  the  rare  and  signal 
event  of  adopting  the  Constitution  of  the  Uni 
ted  States. 

The  discovery  of  America  was  among  the 
most  memorable  of  human  events,  not  be 
cause  it  opened  a  new  theatre  for  commercial 
enterprise  and  for  the  exquisition  of  fortune 
and  of  fame,  but  chiefly  because  it  has  led  to 
other  and  consequential  events  already  most 
interesting,  wonderful  and  ennobling:  and,  of 
these,  the  federal  constitution  of  '88  is  not  the 
least  important.  Without  this  our  Declara 
tion  of  Independehce,  and  the  glorious  Rev 
olution  which  succeeded  it, might,  like  similar 
agents  in  fanatical  France,  have  been  delu 
sive,  and  have  prepared  our  beloved  country, 
first  for  the  wild  fury  of  anarchy  and  vice, 
and  next  for  a  domestic  crown  and  tyrant, 
chains  forged  by  the  ambition  of  some  veue- 


188 


INTRODUCTORY    LECTURE, 


rated  Chieftain  or  loving  demagogue,  and 
rivettcd  by  the  perverted  passions  of  his  de 
luded  victims.  Our  colonial  fathers  of  the 
revolution, — not  contemplating  ablolute  inde 
pendence,  but  intending  only  to  maintain  their  J 
right,  according  to  the  British  constitution,  to 
exemption  from  parliamentary  taxation  with- 
out  parliamentary  representation,  mid  to  re 
sist  the  pretension  of  Great  Britain  to  supre 
macy  over  them  in  all  cases  whatsoever  at 
tempted  to  be  enforced  by  the  stamp  act  and 
tea  duty, — instituted  a  Congress  of  representa 
tives  from  twelve  of  the  then  thirteen  colon 
ies,  for  consulting  about  the  common  welfare. 
That  Council,  called  "the  Delegates  appoint 
ed  t>y  the  good  people,"  and  emanating  of 
course,  virtually,  though  not  in  every  instance, 
directly  and  in  form,  from  the  popular  will, 
met,  for  the  first  time,  in  the  city  of  Philadel 
phia,  on  the  4th  of  September,  1774,  and  ex 
ercised  supreme  authority,  in  the  name,  and 
for  the  benefit,  of  all  the  people  of  all  those 
colonies,  and  not  in  the  name,  nor  in  the  be 
half,  of  the  colonial  governments.  Pursuant 
to  the  recommendation  of  that  assembly,  a 
Congress  of  delegates  chosen  by  the  people  of 
the  thirteen  United  States,  as  the  former  col 
onies  were  then  for  the  first  time  called,  and 
entrusted  by  their  constituents  with  more  def 
inite  powers  of  sovereignty,  convened  at  the 
same  place,  in  "Carpenter's  Hall,"  in  May, 
1775;  and  proceeded  to  prepare  fora  defen 
sive  war;  and,  on  the  4th  of  July,  1776, 
adopted  the  Declaration  of  Independence  in 
the  name,  and  by  the  authority,  of  "the  peo 
ple  of  the  United  States,"  and  not  in  the  name 
nor  by  the  authority  of  the  colonial  govern 
ments.  It  was  to  put  down  those  governments 
and  to  substitute  others  according  to  their  own 
will,  that  the  people  of  all  the  thirteen  colo 
nies  united  and  announced,  as  their  joint  act, 
the  equa  rights  of  man  and  their  determina 
tion  to  maintain  for  themselves,  to  the  utter 
most,  all  the  privileges  of  independence  and 
self-government.  They  alone  had  a  right  to 
make  that  announcement — it  was  made  by 
them  and  for  them  alone,  and  for  all  equally 
and  in  common, — and  was  nobly  maintained 
by  them,  under  the  panoply  of  approving 
Heaven  and  the  standard  of  their  own  union, 
in  the  same  cause  and  for  the  same  end.  The 
Declaration  of  Independence  was,  therefore, 
not  only  a  popular,  but  a  national  act — the 
Revolutionary  war  was  equally  national — it 
was  carried  on  under  the  auspices  of  the  con 
tinental  Congress  until  1781,  when  the  arti 
cles  of  confederation  were  adopted  by  the  13th 
State,  Maryland — and  the  Treaty  of  1783  was 
made  with  the  United  States,  as  one  nation, 
a,nd  acknowledged  their  independence,  as  one 
United  Republic.  In  the  mean  time  each 
State  had,  for  itself,  established  a  distinct 
government  for  purposes  altogether  local.  But 
the  general  Congress  regulated  all  affairs 
common  to  all  as 'one  struggling  and'  united 
eomniunitv.  This  national  council  exercised 


supreme  national  sovereignty  even  to  the  ex 
tremity  of  delegating,  at  one  time,  to  Geiferal 
Washington,  dictatorial  power — and  the  peo 
ple  of  all  the  States,  having  confided  plenary 
power,  not  only  acquiesced,  but  never,  in  any 
instance,  claimed  a  right  to  control  the  author 
ity  of  the  common  head,  nor  ever  arrogated  n 
right  to  secede  or  to  make  a  separate  peace. 
But  jealous,  as  well  of  central  as  of  foreign 
power,  and  sensible  of  the  importance  of  de 
fining  and  limiting  federal  authority,  the  peo 
ple  finally  adopted  the  Articles  of  Confedera 
tion  which  had  been  prepared,  principally  by 
_B.  Franklin,  as  early  as  1775,  but  were  not 
unanimously  ratified  until  the  year  1781.  That 
form  of  association  was  also  the  offspring  of 
the  popular  will — for,  although  it  was  approv 
ed,  in  form,  by  the  respective  State  Legisla 
tures,  it  derived  all  its  authority  from  the 
sanction  of  the  people — because  their  repre 
sentatives  only  acted  out  their  will  and  had  no 
power  to  bind  them  without  their  consent. 

But  the  Articles  of  Confederation  were,  in 
effect,  as  well  as  in  terms,  nothing  more  than 
a  treaty  between  States,  each  claiming  to  be 
free  and  altogether  independent.  Though  it 
stipulated  that  each  State  and  the  people  of 
each  State  should  be  bound  by  the  authorized 
acts  of  the  federal  Congress,  in  which  each 
State,  large  or  small,  had  one  and  but  one 
vote, — yet  it  not  only  conceded  power  totally 
inadequate  to  the  purpose  of  a  superintending 
and  controlling  public  authority,  and  declared 
that  the  Congress  should  possess  no  other  or 
greater  power  than  that  which  was  expressly 
granted — but  it  neither  created  nor  delegated 
any  one  of  the  essential  faculties  of  govern 
ment — Congress  might,  to  a  very  circumscrib 
ed  extent  advise,  recommend,  declare,  urge 
and  entreat — but  it  could,  by  its  own  means 
or  its  own  power,  enforce  nothing.  All  its 
acts  were  addressed  to  the  Confederate  States, 
as  independent  and  absolute  sovereigns — they 
were  not  addressed  to  nor  could  they  directly 
operate  upon  the  individual  people  or  any  one 
citizen  of  any  one  of  the  States.  And  the 
federal  functionaries  had  neither  judicial  nor 
executive  authority — each  of  which  is  hides - 
pcnsable  to  the  existence  and  the  idea  of  sov 
ereignty  or  government. 

Government  is  the  body  of  constituted  pub 
lic  authority  possessing  the  right  and  the  pow 
er  to  govern.  To  govern  necessarily  includes 
not  only  the  right  to  prescribe  the  rule,  but 
the  authority  and  power  also  to  enforce  it. 
Without  both  attributes,  there  is,  in  fact,  no 
regular  or  established  government.  To  an 
nounce  the  public  will  and  compel  the  obser 
vance  of  it  are  the  functions  of  government. 
The  public  will  cannot  be  LAW  unless  the 
body  politic,  Avhose  will  it  is,  has  a  right  to 
enforce  it,  against  the  resisting  will  of  any 
citizen,  or  of  any  constituent  part  of  the  ag 
gregate  community.  And,  consequently,  as 
the  articles  of  Confederation  delegated  none 
of  the  efficient  faculties  of  government,  the 


DELIVERED  BEFORE  THE  LAW  CLASS. 


189 


Union  which  they  contemplated  was  altogether  which,  when  it  occurred,  was,  in  itself,  « 
federal,  depending  on  the  will  of  each  State  [grievous  evil.  For  had  not  the  confederation 
for  its  duration  and  harmony,  and  destitute  of  I  been  altogether  nerveless,  our  present  consti- 
any  cement  or  inherent  conservative  principle  tution  may  never  have  been  adopted;  and  the 
or  power  whatsoever.  Such  a  union — if  union  ultimate  and  probably  not  remote  consequeu- 
it  could  bo  called — could  not  long  exist — and  j  ces  would  have  been  disastrous.  But  the  pal- 
could  not  exist  at  all  in  peace  and  concord,  j  pable  and  total  inadequacy  of  an  ideal  gor- 
The  emphatic  history  of  the  short-lived  con-  j  eminent  enabled  the  enlightened  and  disinter- 
federacy  of  the  States  furnishes  abundant  and  ested  patriots  of  that  day  of  gloom  and  des- 
melaucholy  proof  of  this  truth,  in  itself  a!-  pair  to  urge,  just  before  it"  was  too  late, 
most  self-evident.  j  successful  appeals  to  the  understandings  of  a 

As  man,  however  pure  and  wise,  is  very  j  majority  of  their  countrymen  of  the  thirteen 
fallible,  and  as  "the  heart  of  man  is  deceitful  j  confederate  States,  in  favor  of  the  absolute 
above  all  things  and  desperately  wicked/"'  it  i  necessity  of  adopting  a  common  Government, 
is  necessary  to  his  own  Avelfare,  no  less  than  farmed  with  authority  sufficient  for  preserving 
to  the  peace  and  security  of  his  fellow  men,  j  union  and  domestic  order,  and  for  maintaining 
that  he  should  be  subject  to  civil  rule  and  co-  j  the  external  rights  of  all  the  States  and  of 
ercion.  And  the  uncontrollable  self-will  of  all  the  people,  as  one  undivided  nation.  And 
sovereign  States  is  as  incompatible  with  the  j  hence  that,  which  was  cause  of  mortification 


effectiveness  and  durability  of  a  federal  union 
instituted  for  the  common  welfare  of  the 
Avholc,  as  the  natural  independence  of  individual 
man  is,  to  the  prosperity,  security,  or  even 
existence  of  a  society  of  men  organized  for 
the  benefit  of  each  and  all.  In  each 


and  alarm  to  our  predecessors,  may  be  ground 
of  joy  and  gratitude  to  us. 

The  confederate  Congress  had  power  to  de 
clare  Avar,  but  none  to  carry  it  on — pOAver  to 
make  treaties,  but  none  to  secure  the  observ- 


and  as  much  in  one  as  in  the  other,  the  com-  | ailcc  of  them— power  to  appoint  ambassadors 
mon  will  and  the  common  interest  must  pre-  j and  otiier  aromatic  agents,  but  none  to  pay 
vail,  and  the  Avhole  must  possess  sufficient  pow-  them  one  farthing;  and  to  borrow  money,  but 
er  to  control  everv  part— and  consequently,  none  to  ensure  payment.  In  line,  poAver  to 

jlt  /  say,  but  none  to  act — a  right  to  declare  much, 


the  law  of  the   Avhole  must  be  the 
law  for  each  constituent   member. 


paramount 
Were  not  I    ut  no  Authority  to  do  any  thing.     And,  there- 


this  self-evident,  AVC  might  find  apposite  and 
unanswerable  illustrations  of  its  truth  in  the 
history  of  all  mere  confederations  among  SOA'- 
ereigns  —  and  especially  in  that  of  the  Amphyc- 
tionic  Council  —  the  Achaean  League,  Avhich 
approximated  more  nearly  the  character  of 
practical  government  —  the  Helvetic,  the  Ger 
manic,  and  the  Belgic  Confederacies,  also  ex 
hibiting  the  semblance  of  political  poAver  — 
and  more  especially  also,  our  own  Articles  of 
Confederation,  Avhich  only  delineated  the  shad 
ow  of  a  helpless  body,  without  power,  sub 
stance  or  life. 

No  dispassionate  and  enlightened  man,  can 
contemplate  the  annals  of  our  confederation 
from  1783  to  1788,  Avithout  feeling  a  thorough 
conviction  that,  had  not  a  more  vital  and  effi 
cient  system  been  substituted  for  the  Articles 
of  Confederation,  consolidation  or  dissolution, 
and  consequent  despotism,  in  some  of  its  hydra 
forms,  Avould  have  speedily  and  certainly  fol- 
loAved  the  imbecility,  anarchy,  jealousy,  colli 
sions,  and  distrusts,  Avhich  characterized  that 
short,  but  most  awful  and  eventful  period 
which  intervened  the  Treaty  of  Independence 
and  the  adoption  of  the  Federal  Constitution. 
And  our  own  Avarning  his  tory  portrays,  in  no 
i'alse  colors,  the  necessary  effects  of  a  natural 
cause  —  the  lifelessness  of  the  confederation, 
Avithout  an  inherent  spark  of  vitality  or  prin 
ciple  of  cohesion. 

And  here  Ave  have  another  and  striking  ex 
emplification  of  the  aphorism  that,  in  the  in 
scrutable  dispensations  of  Providence,  the 
greatest  good  not  imfrequently  arises  from,  that, 


fore,  even  the  treaty  acknoAvledging  their  in 
dependence  was  not  executed  by  all  the 
States;  and  Congress,  though  it  made  the 
treaty,  had  no  poAver  to  compel  the  fulfilment 
of  its  stipulations — because  nothing  that  fed 
eral  authority  recommended  could  be  enforced 
Avithout  the  intervention  and  sanction  of  ev 
ery  sovereign  State;  and  Avhenever  any  such 
recommendation  Avas  effectuated,  it  Avas  done 
by  state  and  not  by  federal  poAver.  If  this  be 
government  it  is  that  kind  only  which  may  be 
imagined  to  exist  AA'hen  every  citizen  of  every 
State  shall,  in  every  instance,  think  rightly 
and  act  rightly,  Avithout  the  fear  or  coercion 
of  ciA'il  LaAv;  and  then  no  government  will  be 
necessary,  or  can  exist  otherwise  than  the 
oretically  and  passively. 

The  necessity  of  essential  renovation  and 
even  radical  re-edification  was  seen  and  felt 
by  WASHINGTON  and  his  compatriots— 
and  the  folloAving  sentiments  from  his  halloAV- 
ed  and  oracular  pen  Avere  also  theirs: — "It  is 
indispensable  to  the  happiness  of  the  individ 
ual  States  that  there  should  be  lodged  some 
where,  a  supreme  poAver  to  regulate  and 
govern  the  general  concerns  of  the  confederate 
republic,  Avithout  Avhicli  the  union  cannot  be 
of  long  duration."  "Whatever  measures  have 
a  tendency  to  dissolve  the  Union,  or  contribute 
to  violate,  or  lessen  the  sovereign  authority, 
ought  to  be  considered  hostile  to  the  liberty 
and  independence  of  America,  and  the  authors 
of  them  treated  accordingly."  And  for  the 
purpose  of  preserving  the  liberty  of  the  States, 
he  recommended,  as  indispensable, — "An  in- 


190 


INTRODUCTORY   LECTURE, 


dissoluble  union  of  the  States  under  one  fed 
eral  HEAD. 

As  early  as  1781,  Pelatiah  Webster,  in  an 
able  pamphlet,  demonstrated  the  insufficiency 
of  the  articles  of  confederation,  and  suggested 
a  Continental  Convention  for  improving  the 
instrument  of  Union.  In  1782  Alexander 
Hamilton  urged  the  same  thing,  with  objects 
rather  more  explicit.  In  1784,  Noah  Web 
ster,  in  one  of  his  miscellaneous  publications, 
proposed  the  adoption  of  "a  new  system  of 
government,  which  should  act,  not  on  the 
States,  but  directly  on  individuals,  and  vest  in 
Congress  full  power  to  carry  its  laws  into  ef 
fect."  So  far  as  we  know  this  was  the  first 
proposition  for  a  sepreme  national  government 
— a  constitution  of  national  sovereignty  in 
stead  of  a  league  among  sovereigns.  But 
often  afterwards  many  illustrious  citizens  urg 
ed  the  same  thing.  In  April  1787,  James 
Madison,  in  a  letter  to  Edmond  Randolph 
said: — "I  hold  it  for  a  fundamental  point  that 
an  individual  independence  of  the  States  is 
utterly  irreconcilable  with  the  idea  of  an  ag 
gregate  sovereignty.  I  think,  at  the  same 
time,  that  a  consolidation  of  the  States  into 
one  simple  republic  is  not  less  unattainable 
'than  it  would  be  inexpedient.  Let  it  be  tried 
then  whether  any  middle  ground  can  be  taken 
which  will  at  once  support  a  due  supremacy  of 
the  national  authority,  and  leave  in  force  the 
local  authorities,  so  far  as  they  can  be  subor- 
dinately  useful.  Let  the  National  Government 
be  armed  with  positive  and  complete  authority 
in  all  cases  where  uniform  measures  are  nec 
essary,  as  in  trade,  &e.,  &c."  This  was, 
probably,  the  first  recorded  proposal  of  a 
Constitution  of  a  General  Government,  na 
tional  and  supreme  as  to  all  national  interests 
and  federal  also  with  local  supremacy  in  the 
States  to  the  extent  of  concerns  exclusively 
affecting  each  State  sepcrately  and  alone. 

As  soon  as  the  Federal  Convention  was 
organized,  Edmund  Randolph,  as  the  selected 
organ  of  the  Virginia  delegation,  submitted 
the  following  as  the  foundation  on  which  the 
Convention  should  build: 

"1.  That  a  union  of  the  States  merely  Fed 
eral  will  not  accomplish  the  objects  proposed 
by  the  Articles  of  Confederation, — namely, 
common  defence,  security  of  liberty,  and  gen 
eral  welfare. 

"2.  That  no  treaty  or  treaties  among  the 
whole  or  part  of  the  States,  as  individual  sov 
ereignties,  would  be  sufficient. 

"3.  That  a  National  Government  ought 
to  be  established,  consisting  of  a  supreme 
Legislative,  Executive,  and  Judiciary." 

For  himself,  his  colleagues,  and  his  State, 
he  made  an  able  speech  explaining  their  pur 
poses,  and  vindicating  the  necessity  of  a 
Government,  in  lieu  of  a  League — a  National 
Government  operating  supremely  on  every 
citizen  of  the  United  St-Btes,  instead  of  a  con 
federation  of  State  sovereignties,  without  any 
common  sovereignty  over  them — A  Government 


armed  with  power  in  the  highest  political  sense, 
and  co-extensive  with  the  objects  and  inter 
ests  of  the  Union.  And,  in  answer  to  an  en- 
jquiryby  one  member,  and  an  objection  by 
|  another,  he  and  several  other  members  made 
concurrent  explanations,  such  as  the  following: 

Governeur  Morris  explained  the  distinction 
between  a  Federal  Union  and  a  National  Su 
preme  Government — "the  former  being  a  mere 
compact,  resting  on  the  good  faith  of  the  par 
ties — the  latter  having  a  complete  and  com- 
!  pulsivc  operation.  He  contended  that,  in  all 
|  communities  there  must  be  one  supreme  power, 
and  one  only." 

And  George  Mason,  of  Virginia,  observed, 
|  not  only  that  the  confederation  was  deficient 
in  not  providing  for  coercion  and  punishment 
against  delinquent  States,  but  argued  very  co 
gently  "that  punishment  could  not,  in  the  na 
ture  of  things,  be  executed  on  the  States  col 
lectively;  and  that  therefore  such  a  Govern 
ment  was  necessary  as  could  directly  operate 
on  individuals." 

Upon  such  explanations  and  arguments  this 
Virginia  programme  was  adopted  by  an  al 
most  unanimous  vote — Connecticut  alone  vot 
ing  against  it!  And  the  Constitution,  as 
adopted,  is  but  a  proper  amplification  and  wise 
organization  of  the  principle  thus  planted  as 
the  vital  germ. 

The  confederate  Congress  having,  without 
success,  urged  the  States  to  delegate  to  it 
some  power  over  the  regulation  of  external 
commerce — without  some  unity  and  uniform 
ity  in  which  there  could  be  no  union  long — the 
Legislature  of  Virginia,  in  January  1786,  at 
the  instance  of  James  Madison,  appointed 
commissioners  to  meet  similar  representatives 
to  be  appointed  in  other  States,  in  compliance 
with  a  request  previously  made  by  that  an 
cient  Commonwealth — with  authority  to  con 
fer  respecting  the  propriety  of  adopting  some 
uniform  system  of  commercial  regulation. 
And  accordingly  commissioners  from  New 
York,  New  Jersey,  Pennsylvania,  Delaware, 
and  Virginia,  met  at  Annapolis  in  September, 
1786 — and  recommended  a  convention  of  re 
presentatives  of  all  the  States  in  Philadelphia, 
in  May,  1787 — "to  devise  such  further  provis 
ions  as  shall  appear  to  them  necessary  to  ren 
der  the  Constitution  of  the  federal  govern 
ment  adequate  to  the  exigencies  of  the  Union." 
At  the  time  thus  designated,  the  representa 
tives  of  twelve  States — Khode  Island  declin 
ing — assembled  in  Philadelphia,  and,  after 
much  difficulty  and  mutual  concession,  agreed, 
on  the  17th  of  September  1787,  to  recommend 
the  adoption  of  the  present  constitution,  to 
"be  laid  before  the  United  States  in  Congress 
assembled"  and  afterwards  to  be  submitted  to 
a  convention  of  Delegates  chosen  in  each 
State  by  the  people  thereof,  under  a  recom 
mendation  of  their  Legislature  for  their  assent 
and  ratification."  And  the  People  in  Conven 
tion,  as  the  only  true  sovereigns,  who  had  a 
right  thus  to  act,  did  ratify  it,  and  thereby  an- 


DELIVERED  BEFORE  THE  LAW  CLASS. 


191 


State — it  was,  when  completely  ratified,  like 
the  Declaration  of  Independence,  the  joint 
and  several  act  of  the  people  of  "the  United 
States,"  jointly  and  severally  obligatory  upon 
all  the  citizens  of  every  State  and  each  citi- 
izeu  of  the  United  States.  In  their  natural 

sentiments,  the  following:  "It  is  obviously  im-  j  personal  rights  the  people  made  it,  and  no 
practicable  in  the  federal  government  of  these  j  other  human  authority  could  have  made  it. 
States  to  secure  all  right  of  independent  sov-  Its  authoritative  voice  is  "we  the  people  of 
ereignty  to*each,  and  yet  provide  for  the  inter- i  the  United  States" — "ordain  and  establish 
est  and  safety  to  all.  Individuals,  entering  this  Constitution,"  &c. 


parted  to  it  all  its  authority  and  .all  its  life. 
The  federal  convention,  at  the  close  of  its 
patriotic  and  eventful  deliberations,  addressed 
to  the  people  of  the  several  States,  a  memor 
able  communication  signed  by  its  president, 
George  AVi?shii\gton,  containing  among  other 


into  society,  must   give  up  a  share    of  liberty 
to  preserve   the  rest.     The   magnitude  of  the 


Independence  was  declared,  not  by  the  sev 


eral  States,   and   each   for  itself,  nor  by  tho 

sacrifice  must  depend,  as  well  on  situation  and  j  people  of  each  State  separately  for  themselves, 
circumstances,  as  on  the  object  to  be  obtain-  but  by  the  people  of  the  United  States,  coa- 
ed.  It  is  at  all  times  difficult  to  draw,  with  I  lesced  spontaneously  into  one  national  body. 

e  rights  which   The  revolutionary-   Avar  was  carried  on  bv  the 


precision,  the  line  between  those 
must  be  surrendered  and  those  Avhieh  may  be 
preserved;  and,  on  the  present  occasion,  this 
difficulty  was  increased  by  a  difference  among 
the  several  States  as  to  their  situation,  extent, 


by 

people  of  all  the  States  in  one  united  band — 
Independence  was  acknoAvledged,  not  to  the 
States  severally,  but  to  the  United  States  as 
one  nation — and  the  federal  constitution  was 


habits,  and  particular  interests.  In  all  our  i  adopted  for  the  same  American  Republic, 
deliberations  on  this  subject,  AVC  have  kept  styled  "  THE  UNITED  STATES."  Since  the 
steadily  in  our  view,  that  Avhich  appears  to  us  I  day  on  Avhicli  Independence  was  declared,  no 
the  greatest  interest  of  every  true  American,  one  of  the  confederate  States  Avas  ever,  for 


the  CONSOLIDATION  OF  OUR  UNION, 
in  which  is  involved  our  prosperity,  felicity, 
safety — perhaps  our  National  existence.  This 
important  consideration,  seriously  and  deeply 
impressed  on  our  minds,  led  each  State  in  the 
Convention  to  be  less  rigid  on  points  of  infe 
rior  magnitude  than  might  have  been  othcr- 
Avise  expected.  And  thus  the  CONSTITU 
TION,  which  AVC  now  present,  is  the  result  of 
a  spirit  of  amity  and  of  that  mutual  deference 
and  concession  which  the  peculiarity  of  our 
political  situation  rendered  indispensable." 
After  considering  the  report  of  the  convention 
Congress  resolved  unanimously — "that  the 
said  report,  Avith  the  resolutions  and  letter 
accompanying  the  same,  be  transmitted  to  the 
several  Legislatures  in  order  to  be  submitted 
to  a  Convention  of  Delegates  chosen  in  each 
State  by  the  PEOPLE  thereof,  in  conformity 
to  the  resolves  of  the  Convention  made  and 
provided  in  that  case."  It  was  so  submitted 
to  the  people  of  each  State  in  their  original 
sovereignty  in  Convention,  and  Avas  thus  rati 
fied  and  adopted,  by  the  constituent  body  of 
each  State,  as  a  form  of  government  binding 
each  State  and  every  citizen  of  every 
State.  As  each  state  possessed  a  separate 
local  sovereignty,  it  was,  of  course  necessary, 
before  any  portion  of  that  sovereignty  could 


to  a  common   repository   so  as 
general   government,  that    the 


be  transferred 
to  establish  a 

people,  in  their  political  character  as  the  con 
stituents  of  their  several  States,  should  delib 
erate  and  decide,  each  man  for  himself,  and 
the  majority  of  the  people  of  each  State  for 
their  OAVU  distinct  community.  And  just  so 
the  constitution  Avas  considered  and  adopted; 
and,  therefore,  the  ratification,  though  ncces- 
arily  federal,  Avas  also  as  necessarily  popular 
and  national.  Addressed  to  the  people  of 
each  State,  and  adopted  by  the  people  of  each 


any  external  purpose,  or  in  the  true  and  full 
sense  of  national  existence,  recognized  as  a 
nation.  In  foreign  intercourse  and  all  foreign 
relations,  they,  altogether,  constituted  but  one 
nation.  And,  although,  for  all  the  purposes 
of  local  governments,  each  State  has  ever 
been  a  seperate  and  independent  body  politic, 
even  as  to  its  Co- States,  yet,  to  the  extent  of 
all  domestic  interests  common  to  them  as 
confederates,  they  have  never,  in  true  theory, 
been  independent  sovereigns — but  each  has 
been  only  an  intregal  part  of  the  common 
sovereign — the  whole  united  into  one  consis 
tent  mass  of  aggregate  authority,  Avith  but  one 
name,  one  head,  one  Avill,  and  one  single  body 
of  co-operating  pOAvers. 

In  CMsholm's  Exrs.  vs.  The  State  of  Georgia, 
(1st  Pet.  Con.  Rep.  635.)  Chief  Justice  Jay, 
a  Statesman  and  Jurist  of  the  Revolution, 
said: — "The  rcA-olntion,  or  rather  the  Declara 
tion  of  Independence,  found  the  people  al 
ready  united  for  general  purposes,  and,  at  the 
same  time,  providing  for  their  more  domestic 
concerns,  by  State  Conventions  and  other 
temporary  arrangements.  From  the  crown  of 
Great  Britain,  the  sovereignty  of  their  country 
passed  to  the  people  of  it, — and  thirteen  sov 
ereignties  Avci-e  considered  as  emerging  from 
the  principles  of  the  revolution,  combined  by 
local  convenience  and  considerations.  The 
people,  nevertheless,  continued  to  consider 
themselves,  in  a  national  point  of  A*ICAV,  as  one 
people;  and  they  continued,  Avithout  interrup 
tion,  to  manage  their  national  concerns  ac 
cordingly. 

In  Penhallow,  vs.  Doanc,  (1st  Pet.  Con.  Rep. 
21.)  Justice  Patterson,  an  eminent  cotempo- 
rary  publicist,  used  the  following  language: — 
"  The  danger  being  imincnt  and  common,  it 
became  necessary  for  the  people  or  colonies 
to  coalesce  and  act  in  concert,  in  order  to  di- 


192 


INTRODUCTORY    ADDRESS. 


rert -the  gathering    storm.     They  accordingly   parental  voice,  oi^' WE  THE  PEOPLE  < 
grow  into  union,  and  formed  one   great  politi-   THE   UNITED  STATES/- 
cal  body,  of  which  Congress  was  the  directing  j      The  nnion  of  the  States  and  of  file  people, 
principle  and  soul."     "The    truth   is,  that  the  |  though,  in  theory,  always    partlv  Federal  and 


States,  individually,  were  not  known  nor  rec 
ognized  as  sovereign  by-  foreign  nations,  nor 
are  they  now." 

And,   in   Ware 
Rep.  99.)     Justice 


partly  National,    was,    nevertheless,    prior  to' 
the  adoption  of  th'e  present    Constitution,  al 


together  Federal    in    its    practical    operation. 

re,  vs.  Hylton,  (Is*  Pet.  Con.  \  Wanting,  until  then,  a  controlling  national 
mP.  oj. }  ,,,^uee  Chase,  also  a  distinguished  j  power,  it  did  not  possess  the  inherent  faculty 
judge  and  a  co-laborer  in  the  formation  of  the  of  self-preservation,  until  ir  was  imparted  by 
Federal  Constitution,  speaking  of  the  period  the  people  hi  that  great  Charter  of  American 
from  September.  1774,  to  March,  1781,  said 
— "It  appears  to  me,  that  the  powers  of -Con 


gress  during  that  whole  period,    were  derived 
from  the   people  they   represented,    expressh 


liberty  and  security.  Although,  prior  to  that 
signal  event,  a  Promethean  spark'  had  given 
it  the  delusive  semblance  of  an  artificial  vi 
tality,  yet,  it  was  helpless  and  exanimate,  un- 


"•iven  through"  the  medium  of  their  State  Con-  j  til  then  the  sovereign  people  of  all  the  States 
ventions    or" State    Legislature;  or    that,  after   breathed  into  it  the  pure  breath  of  life,  which 


they  were  exercised,  thcv  were  implicitly  rat- 


alone  enables,  or  eould    enable  it  to  live,  and 


itied  by  the  acquiescence  and  obedience  of  the    move,  and  enjoy   a    self-sustained  v.nd  health- 
people."  i  ful  existence. 

The  doctrine,,    contained    in    the    foregoing  j      foreign  force  an<l    oppression    having   pro- 
quotations,    seem  too  obvious    to  require"  the  | <  "^    Impendence,    internal  weakness 

,.  ,,  ,.  discord  induced  the    adoption  ol  the    rederai 

aid  or   argumen  ,    or  o     any    otl.ei    authoim ,,  (,        .      i<)1K     Thirtcen  sovereign  States,  nom- 
than  that  of  then-  own  n.tnnsi:-   propriety  and    ^ ™  ^  J  fmi,ile  c<m{bder!ltio,K  with. 


necessary  truth, 
that  of  the  several 


other   authority 
I',',  propriety  and 
The  birth  of  tl:e  Union  and 


States  \vcre  simultaneous. 


And    there  never    has  since  been    an  instant, 


out  national  power,  presented  but  the  shadow 
of  government,  merely  C/iopean,  and  altogether 


when  the  States  collectively  have  not.  for  na 
tional  objects,  acted  as  one    single  State,  and 
been  known  and  ehamcten/ed  as  "the  United  i  "J'!',^ 
States." 

The  people  who  made  the  several  States, 
also  made  the  United  States — the  first  for  lo 
cal,  the  last  for  national  purposes.  And  the 


inadequate    t->  am 

wi<s  established. 
establish  i 


same  people  who    established,  and    who  alone 
could  have  established  their  State  governments., 


adopted    the  Federal 
ptructed    a    National 


Constitution    and 
Government;    and 


one  purpose  for  which  it 
••To  form  a  more  perfect 
tice,  ensure  domestic  tran- 

it  was  necessary  to  convert  the  shadow  into 
the  substance  of  an  actual  and  efficient  na 
tional  GOVERNMENT.  This  could  alone 
have  been  done  bv  the  plastic  power  of  the 


entire  people,  and  required  the  consentaneous 
efforts  of  all  their  intelligence,  and  patriotism 


and    self-denial.      But 
was  this  work,  it  has,  a 


rreat    and    difficult    as 
tliev  believed,  and  ns 


alone  could  have  (lone  this  work.      An^otherl  we  still  hope,  been  accomplished .    in  the  only 
doctrine  or  deduction,    would  be    inconsistent.    ,)V.}{. 
not  only  with  reason,    and  right,  and   history,   ,1(jo, 
but  also   with  the    principles  of  the    DecJara   ' 


tion  of  Independence  and  of  the  devolution, 
independence  was  claimed  by  the  people  of 
the  United  States  as  one  entire  mass,  entitled 
lo  tho  samo  rights — equal  liberty  to  all  at 
once  was  achieved  bv  their  united  councils 
and  common  efforts;  and  their  Federal  Con 
stitution,  for  the  government  and  security  of 
each,  was  the  concurrent  act  of  the  whole.  • 


Thus 


Liberty   and    the    Union   of  the 


people  of  the  States,  have  ever  been  co-ex 
istent  and  indissolubly  associated,  as  the  body 
and  soul  of  one  vital,  substantial,  comprehen 


pmcticable  and  most  effectual  mode,  by  the 
acloi)tion  of  the  Federal  Constitution;  which, 
ft  vcrv  £Cuerai  analysis  of  its  nature  will 
show,  has  constructed  a  national  government, 
possessing  within  itself  all  the  faculties  neces 
sary  for  preserving  the  Union  and  existence 
of  the  States,  securing  the  liberties  of  the 
people,  and  maintaining  peace  at  home  and 
independence  abroad. 

•  According  to  its  literal  ami  popular  import, 
and  the  most  approved  definition  of  Lexicog 
raphers  and  Publicists,  a  political  Constitu 
tion  is  a  form  of  government  instituted  for 
organising  a  civil  community,  and  defining 
the  manner  in  which  its  public  will  shall  be 


.<ive  political  being,    of  the  same    popular  pa-  i  expressed    or    its    public    authority    enforced, 
rent  age,  conceived  at    the  same  time,  cast    in  i  Government  is  either  speculative  or  practical. 


the  same  matrix,  nurtured  by  the  same  com 
mon  blood,  passing  through  the  same  fiery 
travail,  brought  forth  and  legitimated  by  the 
same  process  and  at  the  same  time,  subjected 
to  the  same  pupilage,  protected  by  the  same 
guardianship,  and  finally,  at  the  same  niemor- 
wble  epoch  of  178$,  matured  into  manhood, 
established  in  robust  vigor,  and,  like  Jacob's 
sons,  blessed  by  the  same  hand  and  the  same 


and  generally  both:  the"  first  is  the  body  of 
organized  public  authority,  the  latter  is  the 
actual  operation  of  the  highest  political  pow 
er — the  one  being  the  frtrm,  the  other  tho  ac 
tion  of  supreme  civil  authority. 

Then  the  great  American  ('barter  of  1788, 
must  l>e  deemed,  in  form, and  in^  power,  a 
structure  of  government,  national,  independ 
ent,  and  supreme, — an  organic  Law  for  all  the 


DELIVERED  BEFORE  THE  LAW  CLASS. 


193 


people  of  all  the  States,  imposing  ji  personal  as  long  as  it  exists,  supreme  and  independent 
and  paramount  civil  obligation  on  every  citizen,  authority  over  those  upon  whom  it  operates,  it 
and  possessing  an  inherent  and  adequate  pow-  jis  not,  in  any  intelligible  and  practical  sense, 
er  of  self-preservation  and  cannot,  consistent-  j  a  Government.  That  which  governs  must,  as 


ly  withits  style,  its  provisions,  its  origin,  or  its 
objects,  be  considered  a  mere  treaty,  or  league, 
or  compact,  between  sovereign  States,  and  de- 


long  as  it  has  a  right  to  govern,  have  author 
ity  to  coerce  those  whom  it  may  govern;  and 
must,  therefore,  be  the  highest  political  pow- 


pending  on  the  faith  and  interpretation  of  each  er,  and  consequently,  must  be  politically  irre- 


contractmg  party. 


sistible.       The     Constitution   of    the    United 


On  its  face  it  is  announced  to  be  a  "CON-    States,  as  to   the  national  concerns   embraced 
STITUTION,"    and  it  delegates  and  organ-  j  by  it,  is  just  as    supreme  as  any    Constitution 
izes  all  the  powers  necessary   for   a   supreme 
popular  government  of  the  United  States. 

The  language  of  the  compact  of  Confedera- 


of  any  of  the  States  can  be  as  to  local  affairB 
exclusively  within  its  scope.  The  one  is  as 
much  a  fundamental  LAW  as  the  other,  —  both 

tion  was  —  "ARTICLES  of  CONFEDERA-  |  emanating  from  the  only  ultimate  sovereign  — 
TION  between  the  STATES  of  New  Hamp-  1  the  constituent  people;  that  of  the  union  being 
shire,  Massachusetts,"  &c.  —  "Each  STATE  |  established  as  the  supreme  law  for  all  the 
retains  its  own  sovereignty,"  &c.  —  "The  Uni-  [people  of  all  the  States,  as  one  nation  for  all 


ted  States  hereby  enter  into  a  firm  league  of 
friendship,"  &c.  But  the  style,  and  origin,  and 
ends  of  the  Federal  Constitution  are  thus  an 
nounced— "We,  the  PEOPLE  (not  the  States) 
of  the  United  States,  in  order  to  form  a  more 
perfect  union,  ESTABLISH  justice,  EN 
SURE  domestic  tranquility,  provide  for  the 
common  defence,  promote  the  general  welfare, 
and  SECURE  the  blessings  of  liberty  to  our 
selves  and  our  posterity,  do  ORDAIN  and 


ESTABLISH  this  CONSTITUTION  for  the 
UNITED  States  of  America. 


international  purposes,  and  that  of  each  sepa 
rate  State  being  made  for  regulating  rights 
exclusively  concerning  one  State  alone  or  the 
people  of  such  State.  An  organic  or  funda 
mental  law  being  the  immediate  offspring  of 
the  people,  in  their  natural  right,  brought  into 
being  for  controlling  all  delegated  power,  and 
even  the  power  and  will  of  the  people  them 
selves  as  long  as  it  remains  unchanged  by 
them,  must  be  above  all  legislative  authority, 


and  equally  above  even  the  popular  voice, 
when  inconsistent  with  it.  Neither  the  Legis- 
The  first  was  evidently  only  a  Confedera-  j  laturc,  nor  any  portion  of  the  people,  nor 
tion  between  sovereign  States,  without  any  j  even  all  the  people  of  a  State,  can,  authori- 
common  power  or  arbiter.  The  last  is  as  ev- 1  tatively  or  rightfully,  overrule,  or  suspend,  or 
idently  a  union  of  the  more  sovereign  people  resist,  the  fundamental  law,  as  long  as  its  ex- 
of  all  the  States,  under  the  standard  of  one  istence  is  acknowledged.  The  people  may 
National  Government,  to  which  they  transfer-  abolish  or  reform  it  peaceably,  and  in  the  mode 
red,  from  their  local  sovereignties,  all  the  permitted  by  its  nature  or  its  terms,  or  may 


powers  necessary  for  governing  themselves 
with  supreme  authority,  to  the  full  extent  of 
all  the  purposes  of  the  Constitution,  independ 
ently  of  the  local  power  or  sanction  of  the 
several  States. 

Such  is  the  essential  and  necessary  difference 


overturn  or  abolish,  it  by  force,  or,  in  other 
words,  by  revolution.  But,  whilst  it  exists, 
its  authority  must  be  supreme  and  irresistible, 
or  it  is  not  what  it  purports  and  was  intended 
to  be — a  fundamental  law.  The  Federal 
Constitution,  to  the  extent  of  its  provisions,  is 


between  a  Confederation  of  States  and  a  Fed-  j  thus  fundamental  and  supreme.  It  was  made 
eral  Constitution  for  the  people  of  the  United  by  the  people,  not  by  the  States;  is  subject  to 
States.  The  one  is  a  treaty  between  sovereigns  modification  or  abolition  by  the  people  alone; 
— the  other  is  a  National  government,  above  i  operates  on  the  people  directly  and  individually 


the  local  sovereignties,  and,  pervading  the 
united  whole  of  the  people  for  all  the  ends  of 
their  union,  is  the  only  sovereign  within  the 
prescribed  sphere  of  national  authority. 

Is  there  not  a  constitution  of  the  United 
States?  Is  not  that  Constitution  a  form  of 
government  for  the  United  States?  And  can 
it  then  be  a  lifeless  form  without  power  to 
govern,  or  is  it  not,  in  action  as  well  as  in 
idea,  as  it  must  be  to  be  a  government,  armed 
with  sufficient  power  to  coerce  the  citizen  with 
out  the  consent  and  in  defiance  of  the  opposi 
tion  of  his  State,  and  thus  tojnaintain  all  the 
just  rights  of  a  National  Government?  It  is 
not  a  government  at  all,  unless,  throughout 
the  United  States,  it  is  the  highest,  and,  to 
tiie  extent  of  its  exclusive  authority,  the  only 
political  powei-.  For,  unless,  to  the  extent  of 
tk«  objects  for  which  it  was  instituted,  it  ha*, 
25 


and  not  on  the  States  or  through  the  agency  of 
State  authority;  and  belongs  to  the  people  of 
all  the  States,  as  one  common  and  entire  mass, 
and  not  to  the  several  States  as  separate  and 
corporate  bodies.  It  cannot,  then,  be  subject 
to  State  power  or  State  will,  or  even  to  the  pow 
er  or  will  of  a  majority  of  the  people  of  all 
the  States,  except  for  amendment,  or  by  revo 
lution.  All  this  is  undeniable,  if  there  is  a 
Constitution  of  the  United  States,  and  that 
Constitution  be  a  fundamental  and  supreme 
law  of  all  the  people  of  all  the  States. 

But  lest  there  might,  in  this  respect,  be 
ground  for  doubt  or  controversy,  the  people 
have  expressly  declared,  in  the  Federal  Con 
stitution  itself,  that  it,  as  Avell  as  all  laws  and 
treaties  made  under  its  sanction,  shall  be  "the 
supreme  law  of  the  land'" — any  provision  in 
any  StaU  Constitution  or  State  law  "to  the 


194 


INTRODUCTORY  ADDRESS 


contrary  notwithstanding."  Then,  if  even 
a  provision  in  a  Constitution  of  a  State,  re- 
pngnant  to  the  Federal  Constitution,  is  void, 
how,  or  by  what  peaceful  and  authorized  means 
can  a  State,  or  the  people  of  a  State,  control 
or  resist  that  law  which  is  thus  sepreme  over 
all? 

Moreover,  the  people,  who  alone  had  the 
power,  have  not  only  organized  a  National 
Government,  but  have  endowed  it  with  all  the 
faculties,  and  have  delegated  to  it  and  taken 
from  the  several  States,  all  the  powers  neces 
sary  and  proper  for  maintaining  supreme  and 
irresistible  national  authority.  All  the  attri 
butes  of  the  highest  political  sovereignty  are 
reducible  to  three  functions  of  power — the 
Legislative,  the  Judiciary,  and  the  Executive. 
And  the  depository  of  these  three  is  undoubt 
edly  a  political  sovereign.  Now  the  Consti 
tution  of  the  United  States,  not  only  delegates 
to  the  General  Government  all  national  powers, 
but  organizes  those  powers,  and  distributes 
them  among  three  separate  and  co-ordinate 
classes  of  functionaries,  and  declares  that  the 
Judiciary  power. of  the  United  States  shall  be 
co-extensive  with  the  Constitution,  Treaties, 
and  Laws  of  the  United  States,  so  that  the 
General  Government  shall  not  have  to  depend 
on  the  uncertain  and  diverse,  or  partisan  inter 
pretations  of  its  Constitution,  Treaties,  and 
Laws,  by  State  tribunals;  but  has  the  right, 
without  which  it  could  not  be  a  GOVERN 
MENT,  of  upholding  and  enforcing  its  own 
laws,  through  the  agency  and  according  to  the 
judgment  of  its  own  independent  Judiciary. 
It  is  the  nature  of  Judicial  power,  that  when  a 
court  of  the  last  resort  finally  decides  a  case 
over  which  it  had  jurisdiction,  the  decision  is 
The  only  appeal 


conclusive  and  irreversible, 
from  it   is  to   arms.     This   collusiveness   is 
necessary  for  peace,  certainty  and  confidence, 
and  for   the  uniformity  and  stability   of  law 


in  lieu  of  a  Leagxie,  and  imparted  to  it  the 
power  of  self-preservation,  Avithout  depending 
on  State  authority,  and  in  defiance  of  State 
opposition.  As  the  Constitution  and  Laws  of 
the  Union  are  the  Constitution  and  Laws  of 
all  the  people  of  the  Union,  that  cannot  be 
constitutional  or  lawful  in  one  State,  which  is 
unconstitutional  or  unlawful  in  any  or  every 
other  State.  But  this  would  be  the  case  fre 
quently  and  inevitably,  if  each  State,  through 
its  Judiciary  or  otherwise,  had  the  ultimate 
right  to  expound  for  itself,  or  within  its  own 
borders,  the  Constitution  and  laws  of  all  the 
people  of  all  the  States. 

Neither  the  union  of  the  States  nor  the  au 
thority  of  the  Constitution  and  laws  of  that 
union  could  be  maintained  without  a  federal 
Judiciary  with  jurisdiction  over  that  Constitu 
tion  and  those  laws,  nor  unless  the  authorized 
and  ultimate  decisions  of  the  National  Su 
preme  Court  should  be  final  and  conclusive 
every  where  within  the  limits  of  the  United 
States.  The  constitution  constructs  a  limited 
government.  If  the  Legislative  department 
transcend  the  prescribed  limitations,  its  acts, 
so  far,  are  not  laws — but  are  without  any  au 
thority  and  utterly  void.  Who  is  to  declare 


them  void  and  prevent 
The  Judiciary;  because 


their  enforcement? — 
that  is  the  appointed 


organ  of  the  aboriginal  judicial  power  of  the 
people,  as  the  Legislative  Department  is  the 
depository  of  their  Legislative  function.  And, 
as  the  judiciary  is  bound  to  decide  Avhat  the 
law  is — and  as  a  legislative  enactment  unau^ 
thorized  or  prohibited  by  the  constitution  can 
not  be  law,  it  is  the  right,  and  the  duty  too,  of 
a  judge  to  disregard,  as  a  nullity,  any  enact 
ment  conflicting  with  the  fundamental  will  of 
the  constituent  people,  which  is,  in  such  case 


the  only  law.     For  this  purpose  it  was  adopted 
— and  to  this  end  it  must  operate. 

The  federal  constitution  also  limits,  in  many 

and  of  justice.  If,  while  the  Constitution  j  important  particulars,  the  local  power  of  the 
lasts,  the  will  of  a  majority  of  all  the  constit-  j  States.  No  State  for  example,  is  allowed  to 
uent  people  be  the  supreme  law,  then  the  Con-  j  coin  money — emit  bills  of  credit — pass  any  ex 
stitution  itself  is  a  delusive  shadow,  altogeth-  jpost  facto  laws  or  any  law,  abridging  the  lib 


er  unnecessary  and  unavailing. 

The  only  object  of  all  our  Constitutions 
was,  to  secure  the  minority  against  the  power 
of  the  majority,  the  weak  against  the  strong, 
the  humble  against  the  exalted,  the  poor 
against  the  rich:  in  fine,  every  isolated  citizen, 
against  the  combined  will  and  power  of  every 
other  citizen.  And  that  end  can  be  attained 
only  through  the  instrumentality  of  an  on- 
lightened,  firm,  and  impartial  Judiciary,  whose 
peaceful  and  noiseless  award  shall  still  all 
commotion,  and  awe,  into  submission,  all  op 
posing  power.  Some  single  and  ultimate  ex 
positor  of  the  Constitution  and  Laws  of  the 
United  States  was  indispensable  to  their  proper 
efficacy  and  prevalence.  For  want  of  such 
an  umpire,  the  old  Confederation  was  a  rope 
of  gaud.  And,  therefore,  the  people,  anxious 
to  make  any  sacrifice  necessary  for  preserving 
their  common  liberties,  adopted  a  Constitution 


erty  of  conscience,  of  speech,  or  of  the  press. 
How  are  such  limitations  on  State  sovereignty 
to  be  enforced?  By  the  State  which  has  itself 
overleaped  them?  Such  an  assumption  is  sui 
cidal  and  preposterous.  The  people  of  the 
whole  United  States,  by  their  fundamental  law 
say  to  each  State  and  to  all  the  people  of  each 
State — "You  shall  pass  no  ex  post  facto  law — 
and,  if  you  do,  it  shall  be  void."'  One  State 
nevertheless,  under  the  influence  of  a  faction, 
or  for  the  purpose  of  experimenting  with  an 
arrogated  self-independence,  enacts  and  at 
tempts,  through  its  own  prejudiced  or  intimi 
dated  Judiciary,  to  enforce,  against  a  perse 
cuted  individual  of  an  obnoxious  denomina 
tion  or  subjugated  party,  a  statute  punishing 
capitally  an  act  or  an  opinion,  which,  when 
done  or  uttered,  was  perfectly  lawful  and  in 
nocent;  he  appeals  to  the  Constitution  of  the 
United  States  as  thg  ark  of  hip  salvation — ihat 


DELIVERED  BEFORE  THE  LAW  CLASS. 


195 


is  his  only  hope,  his  last  refuge — it  in  closed 
against  him  by  his  OAvri  State — caunot  the  peo 
ple  of  all  the  States,  through  their  constituted 
organ,  appointed  as  its  controlling  sentinel  and 
presiding  minister,  open  its  portals  and  save 
him?  If  not — then  any  State  may  pass  and 
enforce  an  ex  post  facto  or  any  other  statute, 
"'the  supreme  law  of  the  land"  to  the  contrary 
notwithstanding.  But  the  federal  Judiciary 
has  this  salutary,  necessary  power,  and  has  ex 
ercised  it  ever  since  the  organization  of  the 
general  government. 

A  State  constitution  also  limits  the  Legis 
lative  power  of  the  State.  If  its  Legislature 
overleap  one  of  these  bulwarks  and  strike  at 
the  guarantied  rights  of  a  single  citizen  or 
minor  party  of  the  State,  can  the  major  party, 
or  "THE  STATE,"  who  prompted  the  usur 
pation,  constitutionally  maintain  it  in  defiance 
of  the  judgment  of  the  ultimate  guardian  and 
umpire  of  the  fundamental  law — the  State 
Judiciary?  Certainly  not:  for  again  we  say, 
that,  if  the  will  of  a  majority  is  always  the 
Supreme  Law — a  constitution  was,  not  only 
unnecessary,  but  idle  and  delusive.  The  fed 
eral  constitution  is  as  inviolable  and  as  effec 
tual  throughout  the  United  States  as  any  local 
constitution  can  be  Avithin  the  limits  of  a 
State.  They  are  both,  in  the  same  sense,  fun 
damental  laAvs  as  far  as  they  are  respectively 
applicable,  excepting  only  when  they  are  in 
conflict:  and  then  the  minor  yields  to  the  ma 
jor;  and  the  federal  Judiciary  has  as  much 
right  and  as  much  power  to  uphold  and  to  en 
force  the  national  constitution  and  national 
laws  as  a  State  Judiciary  can  have  to  main 
tain  the  proper  supremacy  of  a  State  Consti 
tution  and  State  laws.  But  the  Supreme 
Court  of  the  United  States  may  err  in  its  judg 
ment,  and  decide  that  to  be  unconstitutional 
which  is,  in  fact,  constitutional;  or  that  to  be 
constitutional  which  is,  in  fact,  unconstitutional. 
And  is  such  an  error  irremediable?  Not  at 
all.-  There  are  two  remedies,  the  one  consti 
tutional — the  other  unconstitutional.  The  re 
sponsibility  of  the  Judiciary — the  right  to  re 
peal  Legislative  acts  and  to  amend  the  organic 
law.  are  the  only  constitutional  remedies — pop 
ular  resistance  by  force,  is  the  only  other  ac 
tual  remedy,  and  that  is  revolutionary — because 
it  is  inconsistent  with  the  frame  of  the  govern 
ment  and  subversive  of  its  great  ends — the 
supremacy  and  stability  of  law,  and  conse 
quent  legal  security  against  popular  passions 
and  tumultuous  or  licentious  power,  or,  in 
one  comprehensive  word,  MOBOCRACY.  If 
all  these  fail,  we  have  a  rare  and  solitary  case 
presenting  a  necessary  evil  incident  to  all  hu 
man  institutions;  an  immcdicabile  vulnus  of  the 
body  politic,  to  which  every  work  of  man, 
however  good,  is  necessarily  liable.  A  simi 
lar  case  may  occur  in  a  State,  and  may  be  more 
apt  to  occur  there.  And  then  would  there  be 
any  other  remedies  than  those  just  described? 
Certainly  not.  Would  not  the  latter  remedy 
by  force  be  unconstitutional?  Certainly.  And 


is  there  more  danger  that  the  federal  constitu 
tion  will  be  perverted  or  abused  by  the  nation 
al  court,  than  there  is  that  a  State  constitu 
tion  may  be  perverted  or  abused  by  a  State 
court?  Arc  not  both,  the  people's  courts — the 
one,  for  all  the  people — the  other,  for  only  a 
part — the  one,  the  guardian  of  the  supreme 
law  of  the  Union — the  other,  the  guardian  of 
the  subordinate  law  of  an  intrcgal  portion  of 
that  Union? 

Every  political  sovereignty  must  not  only 
have  all  the  faculties  necessary  for  governing, 
but  must,  of  course,  be  the  judge  of  its  own 
powers.  And  therefore,  each  State,  as  alto 
gether  isolated,  is  the  sole  arbiter  of  its  own 
exclusive  power,  according  to  the  plan  of  its 
own  organization — and  the  government  of  the 
United  States  is  necessarily  the  judge,  in  the 
last  resort,  of  its  power;  and,  if  there  be  col 
lision  between  a  State  and  the  General  Gov 
ernment,  the  latter  must  prevail,  because  the 
Constitution  and  the  constitutional  acts  of  the 
United  States  are  "the  Supreme  law"  of  all 
the  people  of  all  the  States;  and  the  Supreme 
Court  of  the  Union  has  delegated  to  it,  by  the 
people  and  for  their  protection,  the  ultimate 
power  to  decide  on  the  Constitution  and  laws 
of  the  Union.  We  say,  confidently,  it  has  the 
ultimate  power,  because  the  jurisdiction  is  con 
ferred  on  it  without  qualification  or  reserva 
tion,  and  therefore  its  final  and  authorized  de 
cisions  must  be  conclusive  and  unquestionable; 
and,  because  also,  any  other  doctrine  would 
lead  to  confusion,  uncertainty,  anarchy  and 
disunion,  and  would  be  altogether  inconsistent 
with  the  provisions  and  objects  of  the  federal' 
Constitution,  and  irreconcilable  with  the  prac 
tical  existence  of  a  general  government. 

The  States  of  the  Union  have  not  all  the 
powers  of  independent  sovereigns.  A  State 
has  no  power  to  declare  Avar,  make  treaties, 
coin  money,  regulate  commerce  either  exter 
nal  or  amo7ig  the  States,  control  the  mail,  na 
turalize  foreigners,  or  make  any  invidious  dis 
crimination  between  the  civil  rights  and 
privileges  of  its  OAVU  citizens  and  those  of  cit 
izens  of  any  of  its  co- States.  The  people 
have,  for  wise  purposes,  taken  all  these  and 
many  other  powers  from  their  separate  State 
governments.  And  are  not  those  just  enumer 
ated  the  highest  attributes  of  sovereignty?  If 
a  State,  nevertheless,  declare  war,  or  niak-e  a 
treaty,  or  coin  money,  or  interfere  with  the 
transportation  of  the  mail,  or  with  the  regula 
tion  of  foreign  commerce,  may  not  the  general 
government  control  it?  Has  it  not  authority 
and  pOAver  to  do  so?  It  has  not,  if  a  State 
has  si  right  to  judge  and  act  for  itself  in  defi 
ance  of  the  judgement  of  the  federal  authorities 
— and  then  the  federal  constitution  has  no  con 
servative  power,  and  is  a  mere  brutumfulmtn, 
nothing  like  a  constitution  or  fundamental  and 
supreme  laAv. 

If  a  citizen  believe  that  the  Legislature  of 
his  State  has  enacted,  to  his  prejudice,  an  un 
constitutional  statute,  he  has  the  natural  right 


196 


INTRODUCTORY   ADDRESS, 


of  deciding  for  himself,  in  the  first  instance, 
whether  he  will  submit  to  it  or  whether  he  will 
incur  all  the  peril  and  responsibility  of  per 
sonal  resistance.  If  he  resist,  and  the  Judi 
ciary  should  sustain  him  by  deciding  that  the 
statute  was  void,  all  would  be  well;  but  if  the 
decision  should  be  against  him,  he  must  sub 
mit  to  the  legal  consequences,  even  if  they 
should  be  those  of  treason;  unless  he  is  stronger 

than  his   government;  and  if  he    be,  his  gov-    n^u  m.  «  kjiaiu  Lu.ic-ai.ei 
eminent  is    put  down,  and  so  far  revolution-   attempt  to    resist    the  regularly 


Il-V    UI     Jtil     IUO    OLULC^.         i^U     SCI     Ul     lllcn     Cclll    Uu  I  C-1U1JJ.UUL.          JL  He    V^C 

the  final  judges  in  their  own  case,  unless  they  and  entire  system, 
resolve  themselves  into  their  original  elements,   ers,  it  is  a   Coustit 


of  nations,  the  danger  of  a  heterogeneous 
union  of  dissimilar  political  bodies  without  a 
pervading  and  common  sympathy.  And 
hence  a  dominant  faction  in  a  State  cannot  es 
tablish  any  form  of  State  government  it  may 
choose,  but  may  be  so  far  controlled  by  the 
government  of  the  United  States,  as  to  be 
compelled  to  retain  a  republican  form.  And 
if  the  same,  or  any  other  party  or  combina 
tion  in  a  State  threaten  domestic  violence,  or 

constituted 

ized.  The  right,  and  the  process,  and  the  [  State  authorities — the  general  government 
issue  would  be  precisely  the  same  if  a  statute  may,  on  proper  application,  protect  the  State 
of  the  general  government  were  called  in  i  from  insurrection  and  violence, 
question;  whether  by  one  person  or  by  all  the  I  The  same  necessary  doctrine  applies  equally 
constituent  persons  of  one  State  or  of  a  major-  j  to  every  power  delegated  to  the  general  gov- 
ity  of  all  the  States.  Xo  set  of  men  can  be  |  eminent.  The  Constitution  is  one  consistent 

If,  as  to  one  of  its  pow- 
titution  or   fundamental   and 


disorganize  their  government,  and  shake  off 
the  political  obligations  which  it  imposes.  In 
surrection  and  revolution  arc  natural  and 
inalienable  rights;  but  they  are  still  insurrec 
tion  and  revolution,  and  nothing  else.  They 


supreme  law,  it  is  just  the  same — neither  more 
nor  less, — as  to  all  the  other  powers  delegated 
by  it  and  denied  to  the  States.  Its  fundamen- 
tality  can  arise  only  from  its  inherent  poAver, 
according  to  its  structure,  to  preserve  itself; 


are  not  political   rights;  because   they  are  in-   and  its  only  supremacy  arises,   or  could  arise, 
consistent  with  political    obligation    and  , sub-   from  its'own  power  to  enforce  its  own  principles, 


vert  all  political  authority. 


and  maintain,  without  extraneous  aid,  its  01 


The  majority  of  the  people  of  one  of  the  just  authority.  It  was  made  by  the  people  to 
States  have  no  more  political  right  to  overrule  j  preserve  their  dearest  rights,  and  to  secure  the 
or  resist  an  authorized  decision  of  the  Supreme  j  Union,  and  to  uphold  the  liberties  of  the  sev- 
Court  of  the  United  States  respecting  the  fed-  j  eral  States.  And  the  people  so  organized  it 
eral  constitution  than  the  same  majority  would  and  transferred  to  it  such  powers  as,  in  their 
have  a  political  right  to  overrule  or  resist  a  judgments,  would  enable  it  to  effectuate  all 
like  decision  by  the  Supreme  Court  of  their  j  those  great  ends.  Why  else  was  it  adopted  at 
State  respecting  their  local  constitution.  In- 1  all?  Why  called  a  Constitution'?  Why  the 
deed  they  have  not  as  much  semblance  of  ait- !  Supreme  LAW  of  the  United  States?  Why 
thority,  because,  in  the  flatter  case,  they  are  j  were  so  many  and  such  high  powers  so  care- 
tho  majority — but,  in  the  former,  they  are  in!  fully  and  specifically  delegated  by  it?  Why  were 
a  very  small  minority.  j  the  national  depositories  of  those  powers  so 

The  general  government  is  armed  with  pow- '  wisely  separated  and  arranged  as  to  make  them 
er  to  protect  and  control  a  State,  even  in  some  mutual  checks  on  each  other?  Why  was  the 
conflicts  of  local  concerns.  The  federal  con-  i  exercise  of  many  important  powers  by  the 
stitution  makes  it  the  duty  of  the  general  gov-  States  expressly  prohibited?  Why  has  the 
ernment  to  guarantee  to  each  of  the  States  a  ,  general  government,  ever  since  its  organiza- 
republican  form  of  government,  and,  on  the  ,  tion,  acted  and  been  permitted  to  operate  just 
application  of  the  Legislature  or  the  Execu-  j  as  a  supreme  government  to  the  extent  of  the 
t-ive  when  the  Legislature  cannot  be  convened, ;  powers  conferred  on  it  by  the  Constitution  and 
to  protect  nny  State  "against  domestic  vio- j  above  the  control  of  the  States?  And  why 
lence."  did  the  people,  by  the  federal  Constitution,  in- 

It  was  deemed  essential  to  union  that,  as  to  '  stitute  a  Supreme  National  Court,  and  confer 
their  fundamental  principles  and  forms  of  gov- ;  on  it  jurisdiction  in  all  cases  in  which  that  Con- 
ernment,  the  States  should  all  be  homogen-  j  stitution  or  a  treaty  or  law  of  the  United 
eons, — and  that  republicanism  should  pervade  i  States  should  ever  be  called  in  question? 
and  Characterize  the  whole;  and,  therefore,  the  ;  The  nature,  and  terms,  and  known  ends  of 
people  of  the  whole,  in  the  plcntitudc  of  their  the  Constitution  itself  answer  these  questions 
sovereignty,  denied  to  themselves,  as  the  con-  without  doubt  or  difficulty;  the  practice  of  the 
stituents  of  the  several  States,  the  right  to  cs-  general  government  and  the  decisions  of  the 
tablish  any  other  thaoi  a  liepublican  State  Supreme  Court  of  the  United  States  ever 
Government,  and  delegated  to  Congress  an-  since  its  organization,  and  the  common  under- 
thority  to  prevent  the  pestilent  contagion  of  standing  and  acquiescence  of  the  people  an- 
any  other  form  in  any  of  the  States.  The  his-  swer  them  also  and  in  the  same  way.  The 
tory  of  political  fraternities,  and  especially  sentiments  of  General  Washington  already 
that  of  the  Germanic  Confederacy,  the  Hel-  quoted,  and  the  language  of  the  Federal  Con- 
retic  League,  and  the  Amphyctionic  Council  vcntion  in  its  address  to  the  people,  and  the 
after  Philip  of  Macedon  was  initiated,  pro-  declared  opinions  of  those  who  opposed,  as 
claimed,  in  one  warning  voice  from  the  tombs  well  as  of  those  who  advocated  the  adoption  of 


DELIVERED  BEFORE  THE  LAW  CLASS. 


197 


the  Constitution,  all  concur  in  the  same  plain 
and  emphatic  answer — that  precisely  "\vhich  we 
hare  been  endeavoring  to  deduce  from  the  Con 
stitution  itself  and  from  the  history  of  its 
adoption.  Had  not  the  object  of  the  people 
been  to  convert  a  confederation  of  independ 
ent  sovereigns  into  a  popular  Government  for 
all  purposes  common  to  all  the  United  States, 
and  endow  it  with  the  means,  of  course,  of 
self-preservation  and  the  power  of  self-enforce 
ment — they  would  not  have  substituted  the 
present  Constitution, — as  it  is, — for  the  Arti 
cles  of  Confederation. 

It  is  historically  true  and  undeniable  that 
the  most  radical  objection  urged  against  the 
adoption  of  the  Constitution,  by  whomsoever 
and  wherever  it  was  opposed,  was — that  it 
was  not  a  confederation  of  States,  but  a  na 
tional  government  which  would,  by  its  own 
power,  operate  personally  and  directly  on  ev 
ery  citizen  of  the  United  States  without  re 
gard  to  the  intervention  or  sanction  of  the 
State  governments — and  that,  therefore,  State 
sovereignty,  to  a  great  and  dangerous  extent, 
was  surrendered,  arid  the  general  government, 
might,  consequently  absorb  all  the  residuary 
powers  of  the  States  and  produce  one  central 
consolidated  government.  The  advocates  of 
the  Constitution  met  that  objection,  not  by  de 
nying  or  qualifying  the  premises,  but  by  shew 
ing  that  the  liberties  of  the  people  and  the 
security  of  the  States  imperiously  required  that 
such  a  national  government  should  be  estab 
lished,  and  should  possess  the  supreme  power 
of  doing  all  that  the  Constitution  authorised 
and  contemplated. 

"There  ought  always  to  lie  a  constitutional 
method  of  giving  efficacy  to  the  constitutional 
provisions.  What,  for  instance,  would  avail 
the  restrictions  on  the  authority  of  the  State 
Legislatures  without  some  constitutional  mode 
of  enforcing  the  observance  of  them?  No  man 
of  sense  will  believe  that  such  prohibitions 
would  be  scrupulously  regarded  without  some 
effectual  power  in  the  Government  to  restrain 
or  correct  the  infraction  of  them.  This  power 
must  either  be  a  direct  negative  on  the  State 
laws,  or  an  authority  in  the  federal  courts  to 
overrule  such  as  might  be  a  manifest  contra 
vention  of  the  articles  of  Union.-"'  "There  is 
no  third  course  that  I  can  imagine.  The  lat 
ter  appears  to  have  been  thought  by  the  Con 
vention  preferable  to  the  former."  "If  there 
are  such  things  as  political  axioms,  the  pro 
priety  of  the  judicial  power  of  a  government 
being  co-extensive  with  its  legislative  may  be 
ranked  among  its  number.  The  mere  neces 
sity  of  uniformity  in  the  interpretation  of  the 
national  laws  decides  the  question.  Thirteen 
independent  courts  of  final  jurisdiction  over 
the  same  causes  is  a  hydra  in  government  from 
which  nothing  but  contradiction  and  confusion 
can  proceed."  "Controversies  between  the 
nation  and  its  members  or  citizens  can  only  be 
properly  referred  to  the  national  tribunals. 
Any  other  plan  would  be  contrary  to  reason, 


to  precedent,  and  to  decorum."  "The  peace 
of  the  whole  ought  not  to  be  left  to  the  dispo 
sal  of  a  part.  The  Union  would  undoubtedly 
be  answerable  to  foreign  powers  for  the  con 
duct  of  its  members:  And  the  responsibility 
for  an  injury  ought  ever  to  be  accompanied 
with  the  faculty  of  preventing  it."  And  the 
letters  of  Publius,  by  Hamilton,  Madison, 
and  Jay,  explaining  the  Constitution,  vindi 
cating  its  provisions,  and  urging  its  adoption, 
are  replete  with  such  arguments.  Neverthe 
less  the  Constitution,  thus  understood  by  all 
parties,  was  adopted. 

This  consideration,  sustained  by  indisput 
able  facts,  should  alone  be  conclusive. 

"The  means  ought  to  be  proportioned  to 
the  end.  The  persons  from  whose  agency  the 
attainment  of  any  end  is  expected,  ought  to 
possess  the  means  by  which  it  is  to  be  attain 
ed."  "Whether  there  ought  to  be  a  Federal 
Government,  entrusted  with  the  care  of  the 
common  defence,  is  a  question,  in  the  first  in 
stance,  open  to  discussion;  but  the  moment  it 
is  decided  in  the  affirmative,  it  will  follow, 
that  that  Government  ought  to  be  clothed 
with  all  the  powers  requisite  to  the  complete 
execution  of  its  trust."  "There  is  an  abso 
lute  necessity  for  an  entire  change  in  the  first 
principles  of  the  system  (confederation)."  "If 
we  are  in  earnest  about  giving  the  union  en 
ergy  and  duration,  we  must  abandon  the  vain 
project  of  legislating  upon  the  States  in  their 
collective  capacities;  we  must  extend  the  laws 
of  the  Federal  Government  to  the  individual 
citizens  of  America.  Every  view  we  may 
take  of  the  subject,  as  candid  inquirers  after 
truth,  will  serve  to  convince  us  that  it  is  both 
unwise  and  dangerous,  to  deny  the  Federal 
Government  an  unconfined  authority,  in  re 
spect  to  all  those  objects  which  are  entrusted 
to  its  management.  A  government,  the  con 
stitution  of  which  renders  it  unfit  to  be  en- 
\  trusted  witli  all  the  powers  which  a  free  peo- 
j  pie  ought,  to  delegate  to  any  government, 
would  be  an  unsafe  and  improper  depository 
of  the  national  interests." 

Such  arc  only  a  few  of  the  many  arguments 
which,  prior  to  the  final  ratification  of  the 
Constitution  by  the  people,  were  addressed  to 
them  in  the  letters  of  Publius  and  elsewhere. 
And  it  was  just  because  the  Constitution  was 
understood  to  possess  the  national,  efficient, 
and  supreme  authority  thus  ascribed  to  it,  that 
one  party  opposed  and  another  advocated  the 
adoption  of  it.  Then,  were  there  no  other  con 
sideration  leading  to  the  same  conclusion,  does 
it  not  possess  that  character?  Plainly  and  un 
deniably,  as  we  unhesitatingly  believe,  it  does, 
it  must. 

That  the  Sttprcme  Court  of  the  Union  has 
final  jurisdiction  over  a  judicial  case,  in  which 
a  State  is  a  party  as  plaintiff,  is  not,  and  can 
not  be  denied  or  doubted.  And  that  court 
in  Cohens  7>s.  Virginia,  and  in  other  (rases, 
has  decided,  and  correctly  too,  that  it  has  ju 
risdiction  whenever  the  Constitution  or  a  treatv 


193 


INTRODUCTORY    LECTURE, 


or  law  of  the  United  States,  in  implicated  by 
a  decision  by  a  State  court  againat  it.  even 
though  a  State  be  defendant  in  the  feuit. — 
Those  decisions,  having  been  so  long  acqui 
esced  in  and  so  generally  approved,  must  be 
deemed  to  be  correct.  Then  Avill  it,  can  it  be 
denied,  or  seriously  doubted,  by  an  intelligent 
and  dispassionate  mind,  that,  the  Supreme  Na 
tional  Court  having  jurisdiction  to  decide 
against  a  State,  the  General  Government  has 
the  power  to  enforce  the  decision?  If  it  can 
not,  the  decision  cannot,  as  the  decisions  of 
the  same  court  in  other  cases,  be  final  and 
conclusive,  and  if  it  be  not,  that  court  has 
not,  in  that  class  of  cases,  appellate  jurisdic 
tion.  But  it  has  such  jurisdiction;  and,  there 
fore,  a  State,  like  any  other  suitor,  is  bound 
to  submit.  This  is  only  another  exemplifica 
tion  of  the  supremacy  of  the  Constitution, 
Treaties  and  Laws  of  the  United  States,  and 
of  the  power  of  the  General  Government  to 
enforce  them,  against  any  opposing  body  of 
citizens,  even  though  they  may  happen  to  con 
stitute  a  majority  of  a  State.  This  kind  of 
security  of  a  citizen,  or  a  minor  party  against 
a  dominant  majority,  is  ono  of  the  most  valu 
able  and  necessary  of  all  political  rights. — 
And  certainly  the  order  of  nature  would  be 
inverted,  and  all  precedent  outraged,  if  a 
court  of  a  State,  from  which  an  appeal  may 
be  taken  to  the  Supreme  Court  of  the  nation, 
may  lawfully  refuse  to  obey  the  mandate  of 
the  revising  tribunal,  and  thus,  in  eifect,  abol 
ish  the  constitutional  right  of  appeal,  assume 
supreme  independence,  and  virtually  reverse 
the  decisions  of  the  higher  court.  And  if  a 
court  of  a  State  cannot  do  this,  surely  the 
State  itself  cannot  do  it,  by  law  or  otherwise, 
in  any  of  its  political  functions  or  capacities. 

We  have  two  systems  of  government,  each 
supreme  in  its  sphere — the  several  State  gov 
ernments  for  local  purposes  concerning  each 
State  separately  and  alone,  and  the  National 
government,  for  all  national  objects  of  exter 
nal  concern,  or  of  domestic  interest  among 
the  citizens  of  different  States,  or  important 
to  the  harmony  and  union  of  the  States.  In 
the  first  aspect,  the  Union  is  Federal,  in  the 
letter  it  is  altogether  National;  and  the  whole 
action  of  the  General  Government  is  Nation 
al;  that  is,  upon  all  the  citizens  of  the  United 
States  equally  and  alike,  and  not  on  the  States 
in  their  corporate  character.  The  Constitution 
of  the  United  States  was  made  to  bind  the 
States  together.  This  it  cannot  do,  if  any 
one  State  can  control  the  Government  of  the 
United  States,  or  dissolve  the  Union  by  either 
resistance  or  secession.  The  people  of  the 
States  had  a  right  to  abrogate  their  local  gov 
ernments,  and  form  one  consolidated  National 
Government.  It  was  not  deemed  prudent  to 
do  so  altogether,  or  to  a  greater  extent  than 
was  proper  for  preserving  the  Union  of  the 
States,  and  protecting  their  common  interests 
abroad:  And,  to  that  extent,  but  that  only, 
the  people  did  surrender  all  separate  State 


power,  just  as  fully  and  effectually  as  if  they 
had  utterly  abolished  their  State  govern 
ments  and  substituted  one  entire,  exclusive, 
central  government.  "The  Constitution  of 
\  the  United  States  being  ratified  by  the  people 
of  the  several  States,  became,  of  necessity, 
to  the  extent  of  its  powers,  the  paramomnt 
authority  of  the  Union.  On  sound  principles,^, 
it  cannot  be  viewed  in  any  other  light.  In 
the  institution  of  the  government  of  the  Unit 
ed  States,  by  the  citizens  j^of  every  State,  a 
compact  was  formed  by  the  Avhole  American 
people,  which  has  the  same  force,  and  par 
takes  of  all  the  qualities,  to  the  extent  of  its 
powers,  as  a  compact  between  the  citizens  of 
a  State  in  the  formation  of  their  own  (State) 
Constitution.  It  cannot  be  altered,  except  by 
those  who  formed  it,  or  in  the  mode  prescribed 
by  the  parties  to  the  compact  itself.  If  it 
could,  it  would  not  be  a  Constitution.  "The 
great  office  of  the  (Federal)  Constitution,  by 
incorporating  the  people  of  the  several  State*, 
to  the  extent  of  its  powers,  into  one  commu 
nity,  and  enabling  it  to  act  directly  on  the 
people,  (the  only  parties  to  it)  was  to  annul 
the  poAvers  of  the  State  governments  to  that 
extent.  The  government  of  the  United  State? 
relies  on  its  own  means,  for  the  execution  of 
(all)  its  powers,  as  the  State  governments  do 
for  the  execution  of  theirs;  both  government* 
having  a  common  origin  or  sovereign,  the 
people;  the  State  governments,  the  people  of 
each  State,  the  National  Government,  the  peo 
ple  of  every  State;  and  being  amenable  to 
the  power  that  created  it.  It  is  by  executing 
its  functions  as  a  government,  thus  originating 
and  thus  acting,  that  the  Constitution  of  the 
United  States  holds  the  States  together,  and 
performs  the  office  of  a  league.  It  is  owing 
to  the  nature  of  its  powers,  that  it  performs 
that  office  better  than  the  Confederation,  or 
any  league  which  ever  existed,  being  a  com 
pact  which  the  State  governments  did  not  form 
to  which  they  are  not  parties,  and  which  exe 
cutes  its  own  powers  independently  of  them." 

Tims  thought,  and  thus  said,  James  Mon 
roe,  who  was  among  the  most  distinguished  of 
those  opposed  the  adoption  of  the  Federal 
Constitution,  and  whoso  chief  objection  to  it 
was,  that  it  was  understood  then,  as  now,  to 
be  just  what  he  has  so  plainly  and  forcibly 
described  it  as  being,  in  one  of  his  messages 
as  President  of  the  United  States. 

Luther  Martin,  a  leading  member  of  the 
Maryland  Convention,  and  Avho  voted  against 
the  ratification  of  the  Federal  Constitution, 
assigned,  among  others,  the  following  reason: 
"By  the  3rd  article,  the  judicial  power  is  vest 
ed  in  ono  Supreme  Court,  and  in  such  inferior 
courts,  &c.  These  courts,  and  these  only,  will 
hiiv«;  ;i  right  to  decide  upon  the  laws  of  the 
United  States,  and  all  questions  arising  upon 
their  construction,  &c.,  by  whose  determina 
tion  every  State  is  bound." 

Charles  Pinekney,  among  the  most  promi 
nent  and  active  of  the  membersiof  the  federal  con- 


DELIVERED  BEFORE  THK  LAW  CLASS. 


199 


vention,  said  that 
Supreme  Court  of 


the    States,  indi- 
unauthorized    laws,    and  to 


it  would  be  the  duty  of  the  ]  it  would  be   in  the  power  of 
the  United  States,  "not  on-   virtually,  to   pass   unauthori 

r  to  decide  all  national  questions  which  should  carry  them  into  complete  effect,  any  thing  in 
arise  in  the  Union,  but  to  control  and  keep  the  the  Constitution  and  laws  of  the  United  States 
State  judiciaries  within  their  proper  limits."  j  to  the  contrary  notwithstanding.  This  would 

Mr.  Madison,  who  was  an  eminent  mem-  jbe  a  nullifying  power  in^its  plenary  character; 
ber  of  the  Federal  Convention,  and  also  of  j  and  whether  it  had  its  final  effect  through  the 
that  of  his  State,  Virginia,  said,  in  the  latter,  j  legislative,  executive,  or  judiciary  organ  of 
in  answer  to  an  argument  by  the  celebrated  j  the  State,  would  be  equally  fatal  to  the  con- 
Patrick  Henry  against  the  controlling  power  stituted  relation  between  the  two  governments, 
vested  in  the  General  Government  through  its  Should  the  provisions  of  the  Constitution,  as 
Supreme  Court — "'It  may  be  a  misfortune,  here  received,  be  found  not  to  secure  the  gov- 
that,  in  organizing  any  government,  the  ex-  jerument  and  rights  of  the  States,  against  false 
plication  of"  its  authority  should  be  left  to  any  j  usurpation  and  abuses  on  the  part  of  the 
of  its  co-ordinate  branches.  THERE  IS  NO  j  United  States,  the  final  resort,  within  the 
EXAMPLE  IN  ANY  COUNTRY  WHERE  j province  of  the  Constitution,  lies  in  an  amonrt- 
IT  IS  OTHERWISE.  There  is  no  new  pol-  ment  of  the  Constitution,  according  to  a  pro- 
icy  in  submitting  it  to  the  Judiciary  of  the  cess  applicable  to  the  States." 
United  States."  Peace  and  justice  between  the  States  thein- 

It  is  thought  by  many,  that  Mr.  Madison,  selves  and  the  just  and  necessary  authority  of 
in  his  famous  Preamble  and  Resolutions  of  the  government  of  the  Union,  could  not  be 
1799,  advocated  the  right  of  a  State  to  set  up  | preserved,  unless  the  latter  had  powers  para- 
its  own  judgment  in  opposition]  to  that  of  the  j  mount  to  those  of  the  Several  States.  As  it, 
constitutional  organs  of  the  General  Govern-  as  well  as  each  of  them,  was  made  by  the 
ment,  and  to  resist,  by  force,  an  act  of  Con-  !  people,  and  as  it  was  made  by  the  whole  peo- 
gress  which  it  should  deem  unconstitutional,  pie  of  all  the  States  and  is  responsible  to  them 


We  pjesume,  however,  that  this  was  not  what 
lie  or  those  who  concurred  with  him  intended, 


and  only  them,  and  each  of  the  State  govern 


ments  was  established  by  only  a  fraction  of 
but  that  they  meant  only  to  maintain  the  un-  j  the  people  of  the  Union,  it  is  as  intrinsically 
questionable  and  unquestioned  doctrine,  that  j  fitting,  as  it  is  absolutely  necessary,  that,  in  a 
a  State  or  State  court,  like  an  individual,  collision  between  it  and  any  of  them,  the 
might,  in  the  first  instance,  judge  for  itself  as  (Federal  Government  should  control.  In  a 
to  the  constitutional  validity,  of  an  act  of  j  contest  between  the  whole  and  any  of  its  parts. 
Congress,  and  might  endeavor,  peacefully,  by  j  the  former  must  govern. 

argument,  remonstrance  or  resolution,  to  pro-       But,  if  any   State  should  ever  feel  itself  so 
cure  the  repeal   and  prevent  the   enforcement  oppressed  by  Federal  usurpation  or  injustice. 


of  it.  But  if,  as  is  possible,  more  was  intend 
ed,  the  later  and  more  enlightened,  and  ma 
tured,  and  disinterested  opinion  of  Mr.  Madi 
son,  should  alone  be  a  sufficient  antidote  to 
any  such  cancerous  doctrine  as  that  of  the 
political  independence  and  supremacy  of  any 
one  State,  in  a  collision  with  the  Govern 
ment  of  all  the  States.  In  his  admirable  let 
ter  to  Edward  Everett,  dated  October  1830, 
after  establishing,  in  a  lucid  and  unanswer 
able  argument,  the  popular  origin  and  action 
of  the  General  Government  and  the  suprema- 


as  to  consider  it  better  to  dissolve  the  connexion 
than  passively  to  endure  what  it  deems  wrong, 
its  remedy  is  undoubted  and  natural — it  may, 
as  our  fathers  did,  and  as  all  men  have  a 
right  to  do,  try  the  hazards  of  revolt.  But 
such  a  remedy  is  extra-constitutional;  and, 
whenever,  in  any  instance,  it  shall  be  resorted 
to  successfully,  theFederal  Constitution  will 
be  impaired  or  destroyed,  and  the  Union  it 
self  maimed  or  dissolved.  The  trial  will  be 
one  of  moral,  not  of  political  power,  and  will 
present  a  rare  and  momentous  crisis,  in  which 


cy  of  its  authority,  he  said: — -"Those  who  have  all  political  systems  must  either  fail,  or  must 
denied  or  doubted  the  supremacy  of  the  judi-  triumph  only  by  the  ultimate  reason  of  nations 
cial  power  of  the  United  States,  and  denounce  j  — physical  force.  And  in  the  language  of 
at  the  same  time  a  nullifying  powerin  a  State, 
seem  not  to  have  sufficiently  adverted  to  the 


utter  inefficiency  of  a  supremacy  in  a  law  of 
the  land,  without  a  supremacy  in  the  exposi 
tion  and  execution  of  the  law,  nor  to  the 
destruction  of  all  equipoise  between  the  Fed 
eral  Government  and  the  State  governments, 
if,  while  the  functionaries  of  the  former  are 
directly  or  indirectly  elected  by  and  respon 
sible  to  the  States,  and  the  functionaries  of 
the  States  are,  in  their  appointment  and  re 
sponsibility,  wholly  independent  of  the  United 
States,  no  constitutional  control  of  any  sort 
belonged  to  the  United  States  over  the  States. 
Under  «uch  an  organization,  it  it  eyidint,  that 


Chief  Justice  Ellsworth,  after  urging  in  con 
vention  the  necessary  supremacy  of  the  Gen 
eral  Government — "Still,  however,  if  the 
United  States  and  the  individual  States  will 
quarrel — if  they  want  to  fight — they  may  do 
it,  and  no  frame  of  Government  can  possibly 
prevent  it." 

But  to  prevent  or  render  difficult  such  a 
catastrophe,  the  Federal  Constitution  was 
adopted,  the  Union  was  established,  and 
the  General  Government  was,  as  far  as  au 
thority  has  been  delegated  to  it,  vested  with 
ample  and  supreme  national  powers.  And  ai 
long  as  its  just  authority,  as  established  by 
the  p«opl«  in  convention,  shall  !>•  properly 


200 


INTRODUCTORY    LECTURE, 


respected  or  maintained,  that  Union  and  Lib 
erty  which  it  was  designed  to  watch  over  and 
secure,  will  exist  and  be  enjoyed  as  far  and 
as  perfectly  as  they  could  exist  or  be  enjoyed 
under  any  political  organization  which  the 
wisdom  and  patriotism  of  our  predecessors 
could,  with  their  lights,  have  completed.  It 
was  thus  only,  that  they  could  "ESTABLISH 
justice"  or  "SECURE  domestic  tranquility." 

If  the  people  of  a  State,  by  ordinary  leg 
islation,  or  by  the  intervention  of  their  State 
Judiciary,  cannot  nullify  an  act  of  Congress 
or  a  treaty  or  provision  of  the  Federal  Con 
stitution,  against  the  will  of  the  people  of  the 
United  States,  as  expressed,  finally  and  au 
thoritatively,  through  their  proper  organs,  they 
surely  cannot  do  so,  lawfully  or  availably,  in 
convention,  or  otherwise  in  any  political  ca 
pacity  which  they  can  assume  as  a  constituent 
member  of  the  Union.  The  Federal  Consti 
tution  being  made  by  and  for  the  people  of  the 
States,  and  addressed  to  and  operating  upon 
them,  is,  of  course,  obligatory  on  them  as 
citizens  of  the  United  States,  and  may  be  en 
forced  upon  them  as  long  as  they  shall  remain 
in  the  Union. 

If,  for  example,  no  state  Legislature  can 
pass  an  ex  post  facto  law,  or  law  impairing  the 
legal  obligation  of  a  contract,  or  any  law  es 
tablishing  a  religion  or  prescribing  a  religious 
test  oath,  the  people  of  a  State  certainly  can 
not,  in  convention  or  in  any  other  mode,  con 
stitutionally  enact  and  enforce  any  such  inter 
dicted  law  or  ordinance,  or  any  thing  else  for 
bidden  by  the  supreme  law  of  all  the  people 
of  all  the  States.  A  State  Constitution  is  a 
law — fundamental  it  is  true — but  nevertheless 
law,  and  nothing  more  than  law.  And  the 
Constitution  of  the  United  States  being  the 
supreme  law — any  thing  in  any  State  law  or 
"State  CONSTITUTION  to  the  contrary 
notwithstanding'' — must  retain  its  supremacy 
over  a  State  convention  and  even  the  people  of 
each  State  as  long  as  they  continue  to  be  also 
people  of  the  United  States;  otherwise,  it 
would  not  l)e,  what  it  is  both  declared  and  ad 
mitted  to  be,  the  supreme  law  of  the  people 
of  the  United  States;  but  might,  at  any  mo 
ment,  be  paralyzed  in  all  its  functions  and 
parts,  by  a  factious  and  dominant  party,  in 
any  one  State,  under  the  pretence  of  renova 
ting  their  State  Constitution.  A  State  cannot 
remain  in  the  Union  and  claim  the  protection 
of  the  Federal  Constitution,  without  being,  at 
all  times,  and  under  all  circumstances,  sub 
ject,  in  all  respects,  to  the  paramount  author 
ity  of  that  Constitution.  No  portion  of  the 
people  can,  in  any  mode,  be  exonerated  from 
the  obligations  and  sanctions  of  the  Federal 
Constitution,  and  still  be  entitled  to  all  its 
blessings.  They  cannot  be,  in  any  particular, 
above  the  supreme  law  of  the  Union,  and  still 
be  in  the  Union,  and  under  the  protection  of 
its  striped  banner.  And  should  any  person  bo 
deemed  both  candid  and  sane,  who,  admitting 
the  supremacy  of  the  Federal  Constitution  and 


the  absurdity  of  indiscriminating  nullification 
by  a  State,  yet  pretends  to  believe  that  the 
people  of  a  State,  in  State  convention,  may 
disband  themselves  from  all  national  authority 
and  rightfully  trample  under  their  feet  any 
principle  of  the  National  Constitution?  Such 
a  suicidal  nostrum  as  that  recently  concocted 
by  a  few  reckless  political  steam  doctors  of 
the  Keystone  State,  for  destroying  the  legal 
obligation  of  its  own  contracts,  is  ultra-nulli 
fication,  and  would,  if  sanctioned,  lay  the  Con 
stitution  of  the  United  States  at  the  feet  of  any 
discontented  or  unprincipled  faction,  to  which, 
in  any  State,  accident,  or  fraud,  or  force,  might 
give  predominance. 

The  people  of  a  State  have  no  more  right, 
in  any  mode,  than  the  same  aggregate  number 
in  all  the  States  would  have  in  the  same  mode, 
to  control  the  action  of  the  General  Govern 
ment;  and,  the  only  modes  in  wrhich  the  peo 
ple  of  the  Union  can  constitutionally  and  ef 
fectually  operate,  are  just  the  same  as  those 
in  which  the  people  of  a  State  may  operate  on 
their  State  Constitution  and  laws — not  by  pop 
ular  or  legislative  resistance,  but  by  acting  on 
the  public  functionaries,  or  by  constitutional 
abolition  or  amendment,  as  prescribed  in  the 
fundamental  Charter.  And,  in  order  thus  to 
control  the  General  Government  or  the  Con 
stitution  of  the  United  States,  a  constitutional 
majority  of  the  States  or  the  people  of  the 
United  States  must,  of  course,  concur.  Upon 
any  other  hypothesis,  there  can  be  no  Union 
or  national  supremacy,  and  a  majority  in  any 
one  State  might  arrogate  supremacy,  as  to  it 
self,  and,  at  any  moment,  dissolve  the  Union. 
Such  is  not  the  character,  such  was  not  the 
object — such  cannot  be  the  effect  of  the  Fed 
eral  Constitution.  It  was  popular  in  its  ori 
gin  ,  is  national  in  its  operation,  and  must  be 
practically,  as  well  as  theoretically^  the  su 
preme  law  of  the  laud,  any  thing  in  any  State 
law  or  State  Constitution  to  the  contrary  not 
withstanding.  And  no  State  can  judge  for 
itself,  in  the  last  resor,t,  in  any  other  sense, 
than  every  individual  citizen  may  judge  for 
himself  upon  all  his  personal  and  political  re 
sponsibilities — for  a  State  is  but  the  persons 
who  constitute  it.  In  eacli  case,  and  in  every 
case  that  can  arise  of  a  judicial  character,  the 
National  Judiciary  has  ultimate  jurisdiction, 
and  its  judgment  must  be  authoritative  and 
conclusive.  This  is  the  Constitution  the  peo 
ple  adopted — it  was  thus  universally  under 
stood,  has  always  thus,  and  only  thus,  opera 
ted,  and  can  not  prevail  or  long  exist  unless  it 
has  authority  and  power  so  to  maintain  itself. 
It  may  appear  strange  that  we  have  said  so 
much,  and  yet  so  little  of  what  might  be  said, 
in  support  of  a  proposition,  which  seems  al 
most,  if  not  altogether,  self-evident.  But  an 
opposing  doctrine  having,  in  a  certain  quarter 
recently  sprung  up  under  the  sanction  of  some 
distinguished  names,  we  deem  it  our  duty  to 
you,  who  may  be  destined  to  be  among  that 
last  Trhich  i»  to  give  tone  to  the  coming  gen- 


DELIVERED  BEFORE  THE  LAW  CLASS, 


201 


eratiou, — to  endeavor,  by  fair  and  candid  ar 
gument,  to  fortify  your  minds  against,  what 
we  consider,  a  most  dangerous  and  indefensi 
ble  heresy  iu  American  politics;  and  which, 
if  permitted  to  take  root  and  grow,  would,  as 
we  believe,  be  almost  certain,  in  the  hands  of 
misguided  patriotism  or  selfish  ambition,  to 
destroy  the  fairest  political  fabric  ever  yet 
constructed. 

Having  consumed  so  much  time  in  estab 
lishing  the  vital  principle  of  the  government 
of  the  United  Slntes,  we  can  but  barely  touch 
its  organization  and  the  general  features  which 
characterize,  it. 

1st.  Ir  is  a  representative  .democracy:  or 
more  appropriately,  a  Republic — which  is  a 
government  mediately  of  the  people  or  a  por 
tion  of  the  people  in  tkeir  natural  and  equal 
right,  it  is  founded  on  the  doctrine  that  an 
enlightened  and  virtuous  people  may,  under  a 
suitable  organization,  govern  themselves. 

2nd.  It  is  not  only  moved  and  sustained  by 
public  opinion,  but  is  so  constructed  as  to  be 
able  to  maintain  an  equable  motion  by  coun 
teracting  occasional  erratic  tendencies  of  pop 
ular  excitements  and  delusions  in  a  virtuous 
and  enlightened  nation.  For  securing  intelli 
gence  and  proper  deliberation  in  the  enact 
ment  of  laws,  the  people  are  represented  by 
a  complex  legislative  bodv,  sufficiently  large 
to  knov.-  and  to  speak  the  interest  of  all,  and 
not  too  largo  for  proper  deliberation  and  a  due 
.sense  of  responsibility:  compounded  of  three 
distinct  and  mutually  independent  elements — 
a  popular  branch  elected  immediately  by  the 
people, — a  Senate  chosen  lor  a  longer  term 
by  the  State  Legislatures, — and  a  1 'resident 
elected  virtually  by  the  people — each  opera 
ting  as  a  check  on  the  others;  and  thus  af 
fording  some  security  against  ignorance,  pas 
sion,  precipitancy  and  corruption.  Lest  the 
popular  branch  might  not  feel  a  proper  degree 
of  responsibility  it  is  elected  every  two  years 
— lest  that  branch,  thus  popular,  should  act 
hastily  and  unwisely,  a  Senate,  consisting  of 
two  members  from  each  State  and  appointed 
by  State  authority  for  six  years,  is  placed  as  a 
sentinel  and  check — and  lest  both  of  those 
branches  might  sometimes  be  impelled  bv  pas 
sion,  the  President  is  vested  with  the  qualified 
Veto. 

.'3rd.  But  a  still  greater  security  is  afforded' 
by  distributing  the  three  great  functions  of 
political  power  among  three  co-ordinate  and 
distinct  departments,  and  confiding  each  func- ! 
tion  separately  to  an  independent  body  of 
magistracy — so  that  neither  the  Legisla 
ture,  Judiciary,  nor  Executive  can  easily  do 
wrong  without  being  checked  by  one  or  both 
of  the  others.  An  enlightened,  honest,  and 
self-willed  Judiciary  i.;  the  Doric.  Column  of 
this  Trniple  of  Human  Justice.  It  is  an  in 
dispensable  conservator  of  the  Constitution. 
Xo  limitation  on  Legislative  power  could  be 
enforced  without  a.  separate  judicial  depart 
ment.  And  to  secure  fidelity  and  impartiality 
26 


in  the  discharge  of  its  high  functions,  it  must 
be  independent,  to  a  great  extent,  of  the  other 
departments,  and  even  of  popular  opinion.  It 
could  not  otherwise  be  a  safe  and  sufficient  an 
chor  of  the  Constitution.  And  hence  the  Judge* 
of  the  U.  S.  are  not  elected  by  Congress,  nor  by 
the  people — but  are  appointed  by  the  President 
and  Senate — are  entitled  to  salaries  which  can 
not  be  diminished  during  their  continuance  in 
office — have  a  right  to  hold  their  offices  diiring 
good  behavior — and  can  be  removed  only  by 
impeachment  by  the  House  of  Representatives 
to  be  tried  and  concurred  in  by  two-thirds  of 
the  sitting  senators.  And  the  Supreme  Court 
of  the  United  States,  being  established  by  the 
Constitution,  and  its  jurisdiction  thereby  also 
fixed,  cannot  be  abolished  nor  deprived  of 
its  power  without  amending  the  Constitution. 

The  elective  principle,  the  distribution  of  all 
sovereign  power  among  co-ordinate  and  inde 
pendent  department?,  and  the  firm  and  durable 
tenure  of  Judicial  office — are  political  expe 
dients  of  modern  contrivance,  in  the  efficacy 
of  which,  lor  preserving  a  just  balance  of 
power  and  a  wholesome  stability  and  equili 
brium,  great  confidence  is  felt  wherever  they 
have  been  tried.  Without  them  republican 
government  cannot  be  maintained — as  the  an 
nals  of  all  time  clearly  prove. 

4th.  The  powers  delegated  to  the  national 
government  are  altogether  such,  and  such  only, 
as  concern  the  foreign  intercourse  and  exter 
nal  rights  of  all  the  Stales  as  one  aggregate 
and  united  nation,  and  as  are  necessary  also 
for  preserving  harmony  and  union  among  the 
States.  And  both  the  general  and  the  indi 
vidual  State  governments  are  expressly  pro 
hibited  from  doing  anything  which  they  could 
not  do  without  transcending  their  respective 
spheres  and  frustrating  the  ends  of  the  Union. 
But.  for  all  purposes  in  which  the  citizens  of  a 
single  State  are  alone  concerned,  each  State 
retains  its  original  and  unimpaired  sovereignty 
— excepting  only  that,  in  a  collision  between  a 
state  and  the  United  States  as  to  their  respective 
)owers,  the  latter  must  necessarily  decide  in 
the  last  resort.  Then,  of  course,  for  all  the 
purpose.-  exclusively  local,  the  several  States 
constitute  a  union  nearly  federal — and  for  all 
ends  common  to  all,  they  constitute  but  one 
single,  consolidated,  national  government. 
And  it  is  evident  also  that  the  Constitution  of 
the  I'nited  States  is  also  popular  in  its  origin 
— partly  federal  and  partly  national  in  its 
structure,  and  perfectly  national  in  its  opera 
tion.  One  branch  of  Congress  represents  the 
whole  people  of  the  United  States — and  the 
laws  of  Congress  arc  addressed  to  the  people 
of  the  United  States. 

The  several  States  derive  security  and 
strength  from  their  union,  and  from  the  action 
of  the  general  government;  and  that  also  isaid-  ' 
cd  and  secured  by  the  existence  and  co-opera 
tion  of  the  several  State  Governments.  In  a 
territory  so  extensive  and  diversified,  neither 
could  exist  in  purity,  harmony  or  safety,  with- 


S02 


INTRODUCTORY  ADDRESS 


out  mutual  co-operation  in  their  respective 
spheres.  Together  they  are  the  solar  system  of 
politics — the  centripetal  attraction  tends  to 
consolidation — the  centrifugal,  to  dissolution 
— but  as  long  as  their  equilibrium,  as  arranged 
by  the  fiat  of  the  'people,  shall  be  preserved, 
order,  harmony  and  reciprocal  blessings  will 
be  their  joint  offspring.  It  is  obviously  the 
interest  of  the  people,  therefore,  to  preserve 
the  proper  and  necessary  relation  and  powers 
of  the  one  as  well  as  of  the  others.  And  con 
sequently  the  federal  constitution  should  be 
construed,  not  as  a  penal  statute,  or  even  a 
deed,  but  as  a  beneficent  system  of  government 
instituted  by  the  people  for  cementing  the 
Union  and  preserving  their  liberties.  And 
such  an  intcrpretaton  and  effect  should  be 
given  to  it  as  to  enable  it  to  effectuate  all  the 
great  ends  of  its  institution  and  adoption. 

5th.  The  Constitution  of  the  United  States 
cannot  be  regularly  altered,  revoked  or  abol 
ished  without  the  concurrence  of  a  majority  of 
the  people  in  three-fourths  of  the  States  of 
the  Union.  This  anchorage  gives  it  stability 
and  elevates  it  far  above  ordinary  legislation. 
And  without  such  a  provision  or  some  similar 
one,  it  could  not  have  the  proper  effect  of  a 
fundamental  and  paramount  law.  If  it  could, 
at  any  moment,  be  changed,  or  destroyed,  or 
controlled  by  any  one  State,  or  by  a  majority 
of  the  people  of  the  United  States,  it  could  not 
possess  sufficient  stability  or  authority.  Its 
peculiar  value  arises  from  it«  inviolability  and 
the  great  difficulty  of  altering,  or  destroying, 
or  evading  it. 

These  are  the  only  general  features  of  the 
Constitution  which  we  have  time  now  to  notice, 
in  even  the  most  summary  manner. 

This  Constitution  as  it  is,  has,  so  far,  not 
only  falsified  the  predictions  of  its  foes,  but  gen 
erally  fulfilled  the  expectations  of  its  friends. 
It  has  hitherto  shewn,  and  as  long  as  it  shall 
work  well,  will  continue  to  show — what  was 
never  before  discovered — the  true  limits  within 
which  popular  government  may  be  both  prac 
ticable  and  safe — and  the  kind  and  degree  of 
democracy  which  may  be  compatible  with  the 
proper  authority  of  government,  the  order  of 
society,  and  the  security  of  personal  rights. 

It  is  our  sacred  duty  to  ourselves,  and  to 
posterity,  and  all  mankind,  to  preserve  this 
Great  Charter,  in  its  original  purity  and  har 
mony,  and  to  transmit  it  to  our  successors  unim 
paired,  and,  as  far  as  possible,  improved  in  its 
form,  and  strengthened  in  its  authority. 

The  proper  means  for  securing  this  great 
end  are  both  political  and  moral,  and  arc  so 
various  that  the  proprieties  of  the  present  oc 
casion  will  not  allow  us  to  do  more  than  bare 
ly  to  allude  to  such  of  them  as  are  most  prom 
inent. 

1st.  The  more  essential  of  the  political 
means  are — first,  inherent  in  the  structure  of 
the  federal  and  State  governments — all  framed 
and  intertwined  in  such  a  manner  as  to  make 
it  the  interest  of  each  to  support  and  aid  the 


other  in  the  proper  exercise  of  its  proper 
authority,  and  to  render  it  difficult  for  either 
to  encroach  on  the  exclusive  sphere  of  the 
other  and  maintain  the  usurpation — and  sec 
ondly,  and  .chiefly,  in  an  honest,  enlightened, 
and  prudent  adminisiration  of  the  powers  of 
each,  WITH  THE  SINGLE  VIEW  OF 
PROMOTING  THE  PUBLIC  GOOD;  and 
the  power  to  correct,  in  the  proper  mode  and 
in  due  season,  any  incongruities  or  innate  vices 
which  a  matured  and  rational  experience  may, 
from  time  to  time,  develope  in  the  fabric  of  the 
federal  Constitution;  and  the  faculty  also,  of 
always  upholding  its  principles  and  supremo 
authority  by  enforcing  prudently,  fearlessly 
and  tmdeviatingly,  its  own  necessary  and  in 
dependent  powers. 

2nd.  But,  for  this  end,  moral  means  also 
are  indispensable.  Our  Governments  being 
the  offspring  and  creatures  of  public  opinion, 
are  essentially  moral  institutions — and,  there 
fore,  cannot  exist  in  purity  or  with  proper 
practical  effect  without  the  controlling  influ 
ence  of  a  pervading  public  virtue  and  intelli 
gence.  To  govern  themselves  rightly  or  se 
curely,  the  people  must  not  only  know 
how  to  govern,  but  must  also  be  determined  to 
govern  and  to  do  it  justly  and  for  the  perma 
nent  and  greatest  good  of  the  whole  United 
States.  Without  these  cardinal  qualifications 
for  self-government  the  many  will  necessarily 
be  the  deluded  instruments  and  victims  of  the 
ambitious,  selfish  and  deceitful  few,  who  will 
govern  them  by  fraud  or  by  force.  Union  and 
Justice  arc  the  conservative  principles  of  the 
Republic  as  well  as  the- ultimate  objects  of  its 
complex  political  organization.  And  these  are 
the  fruits  only  of  common  sympathies,  common 
intelligence,  and  common  public  virtue.  The 
same  language — the  same  religion — the  same 
color — kindred  origin — common  interests,  com 
mon  glory,  and  common  destiny — are  strong 
and  peculiar  ligaments  of  Union,  never  all 
concurring  elsewhere  upon  earth;  and  these 
arc  not  only  strengthened  in  this  New  World, 
by  the*  physical  adaptations  of  our  common 
country,  obviously  designed  by  Providence  for 
such  a  civil  Union — but  may  be  greatly  and 
almost  indefinitely  increased  by  an  enlightened 
and  national  system  of  internal  improvement, 
for  facilitating  social  and  commercial  inter 
course,  and  vitalizing  with  the  same  spirit  the 
East  and  the  West,  the  North  and  the  South, 
each  a  necessary  part  of  a  happy  and  essen 
tially  whole  body  politic. 

But  all  these  moral  bonds,  strong  and  nu 
merous  as  they  are,  may  be  dissolved  by  the 
blind  ignorance  or  perverted  passions  of  a  de 
generate  people,  as  easily  and  almost  as  speed 
ily  as  the  attenuated  web  may  be  broken  by 
the  wantonness  of  the  capricious  apider  that 
wove  it. 

The  moral  improvement  of  our  countrymen, 
and  especially  of  our  children,  is  far  more  im 
portant  than  the  physical  improvement  of  our 
country,  and  not  only  will  insure  the  latter, 


DELIVERED  BEFORE  THE  LAW  CLASS. 


203 


will  be  honored,  and  charlatanism  and  vice 
but  is  the  only  means  of  ensuring  it,  as  well 
as  other  and  more  desirable  ends  of  human 
power  and  true  human  glory. 

Our  fundamental  institutions  are  excellent 
— but  they  are  not  perfect — they  have  most  of 
the  elements  of  prolonged  existence — but  they 
are  not  indistructible.  They  will  totter  with 
the  decay,  and  must  perish  with  the  extinction 
of  the  public  virtues  which  gave  them  birth, 
and  have,  in  a  manner,  hitherto  upheld  them; 
and  they  will  be  entombed  in  the  same  mau 
soleum  of  departed  glory  and  buried  liberty. 

It  is  right  and  rational  to  love  our  country 
and  revere  her  institutions.  But  let  not  idol 
atry  usurp  the  throne  of  reason,  nor  a  Narcis- 
sian  fondness  for  form,  tempt  to  blind  delusion 
or  self-destruction.  Such  unreflecting  enthu 
siasm  is  finely  satyrized  by  Lucian,  when  he 
represents  Plato  as  a  voluntary  exile  from 
Elysium  for  the  ideal  purpose  of  living  in  his 
Utopian  Republic — and  such  visionary  abstrac 
tions  as  those  of  Plato  have  built  up  and  pulled 


and  gaming,  and  tippling  and  swearing,  and 
other  fashionable  vices,  is  only  a  partial  illus 
tration  of  the  ancient  maxim — leges  moribut 
servient — "the  laws  give  way  to  manners." 

Fundamental,  as  well  as  other  laws,  yield  to 
the  more  supreme  law  of  public  taste  and  pub 
lic  sentiment.  And,  whilst  the  organic  and 
municipal  laws  exist  in  name,  they  are  dead  in 
practical  power,  when  public  virtue  fails. 
The  laws  have  but  little  efficacy,  unless  they 
are  honestly  and  effectually  administered. 
And  even  in  our  own  much  favored  country, 
under  the  guardianship  of  our  excellent  Con 
stitutions,  we  know  that,  sometimes  the  ambi 
tion  of  selfish  demagogues,  and  the  blind  en 
thusiasm  of  misguided  party  spirit,  and  an 
idolatrous  devotion  to  distinguished  names, 
have  prevailed  over  the  principles  of  supreme 
law,  and  furnished  cause  for  much  distrust, 
apprehension  and  despondence.  And  we 
ought  to  know,  also,  that  here,  as  elsewhere, 
and  in  our  own  day,  as  in  ancient  times,  there 
is  not  alwavs  more  than  one  Brutus  in  a  whole 


down  all  the  popular  governments  of  the  old  j  tribe  of  "liberty  men,"  who  destroy  a  Cresar 
and  monumental  world.  Our  Republic  is  j  for  his  ambition;  and  that  the  vaunted  patriot- 
more  rational  and  solid — because,  unlike  all  |  ism  of  contending  parties,  struggling  as  for  the 


that  had  preceded  its  establishment,  it  is  the 
fruit  of  experience  in  the  affairs  of  men, 
and  is,  therefore,  adapted  to  the  character  and 
condition  of  the  people  and  the  nascent  spirit 
of  the  age.  But,  depending  for  its  ultimate 
destiny,  on  the  popular  breath,  it  must  sink 
with  the  decay  of  public  virtue,  as  certainly  as 
manners  have  always  governed,  and  will  ever 
govern  laws.  The  history  of  all  nations  and  ages 


palladium  of  the  citadel,  is  sometimes  nothing 
loftier  or  better  than  the  aggrandizement  of  a 
few  aspiring  men.,  whose  great  solicitude  is, 
not  as  to  "how  the  government  shall  be  admin 
istered,  but  (only  as  to)  who  shall  administer 
it."  And  we  cannot  have  forgotten,  that 
Walpole  has  not  been  the  only  minister  who 
was  ever  put  down  by  a  selfish  coalition,  in 
the  abused  name  of  disinterested  patriotism; 


of  the  world  echoes  the  sentiment  of  Horace,  j  and  that  Pultney,  and  Car  tar  et,  and  Newcastle, 


Quid  leges  sine  moribus  vance  proficient! — and 
proves  beyond  question  that,  without  proper 
education  and  moral  principles  and'  habits,  all 
the  pomp  and  circumstance  of  the  most  mag 
nificent  civil  and  ecclesiastical  establishments, 
and  all  the  laws,  how  ever  numerous  and  good, 
which  legislative  wisdom  could  enact,  Avill  be 
insufficient  for  preserving  order  and  maintaining 
justice  among  men.  Montesquieu  announced 
a  self-evident  truth  when  he  said  that — "the 
laws  of  education,  are  the  first  we  receive,  and 
should  have  respect  to  the  principle  and  spirit 
of  the  government  we  live  under."  And  we 
need  not  look  to  China  or  Confucius,  or  to 
Sparta,  or  to  Lycurgus  for  an  exemplification 
— we  may  find  it  in  every  age  of  the  civilized 
world.  Plautus  and  others  complained  that, 
at  Rome,  manners  prevailed  over  the  laws 
long  before  the  destruction  of  the  common 
wealth,  which  fell  in  the  struggle  between 
Caesar  and  Poinpev  for  the  prize  of  empire; — 
and  it  was  not  Cecsar,  but  the  degeneracy  of 
a  self-confident,  luxurious,  and  nattered  pop 
ulace  that  brought  the  Roman  Republic  to  its 
fatal  end.  We  read  in  Tacitus  that — "good 
manners  did  more  with,  the  Germans  than  good 
laws  in  other  countries;"  and  in  Lord  Bacon, 
that  "it  is  an  old  complaint  that  Governments 
have  been  too  "attentive  to  laws  while  they 
have  neglected  the  business  of  education." 


lave  not  been  the  only  leaders  of  parties,  who, 
,vhcn  they  triumphed  over  the  antagonistparty 
— out-Walpoled  Walpole  himself. 

The  causes  of  these  things  may  be  found 
in  the  credulity,  ignorance  and  passions  of 
a  deluded  and  degraded  people.  And 
wherever  these  popular  elements  exist,  de 
magogues,  and  not  honest  patriots,  will  rule'; 


find 
and 


selfishness, 
not    justice 


and    passion,    and    party, 
or    the    Constitution,    will 


prevail  in  the  administration  of  the  Govern 
ment.  This  is  bad  enough,  even  if  the  forma 
of  governments  shall  be  preserved;  and  it  is 
certain  as  it  is  bad.  But  it  cannot  long 
continue  without  a  Nero,  who,  throwing  aside 
the  mask  of  a  more  dissembling  Augustus, 
will  trample  under  his  idolized  feet,  even  the 
long  insulted  forms  of  free  institutions. 

The  only  ultimate  security  against  such 
mal- Administration  or  final  destruction  of  our 
own  National  Government,  is  the  prevailing 
virtue  and  intelligence  of  the  body  of  our 
freemen.  Let  them  possess  pure  patriotism, 
and  public  virtue,  and  sufficient  intelligence  to 
enable  them  to  think  rightly  for  themselves, 
and  they  will  be  sure  to  act  for  themselves, 
as  it  is  their  interest  that  they  should  act. 
And  then  the  Federal  Constitution  will  be 
strong  enough  to  protect  the  humble,  the  poor, 
and  the  persecuted;  then  talents  and  virtue 


204 


INTEODUCtOJRY   4&&SB86, 


The  impotency  of  the  laws  against  chivalry, 
will  be  rebuked  and  degraded;  then  innocence 
can  Bleep  in  safety,  conscience  can  feel  secure, 
the  tongue  may  utter  what  it  has  to  say,  and 
all  honest  and  virtuous  men  may  look  to  the 
Constitution  of  the  land  as  the  supreme  law 
indeed,  and  feel  assured  that  all  their  rights 
may  be  left  with  confidence  to  the  protection 
of  its  broad  panoply.  But,  without  proper  and 
general  moral  culture,  this  Constitution,  per 
fect  as  it  is,  and  asmuch  as  it  cost,  must  fail, 
and  the  best  hope  ofChristian  man  must  thus 
be  lost. 

Liberty  and  security  can  be  assured  only  by 
the  integrity  and  supremacy  of  the  Consti 
tution  and  of  constitutional  laws.  Rousseau 
never  uttered  a  more  obvious  and  important 
truth  than  when  he  said — "A  Kepublic  is  a 
Government  of  Laws,  not  of  demagogues  or 
monsters."  And)  the  following  admirable  de- 
fintion  of  a  virtuous  democracy,  by  Thucydides, 
though  theoretically  true,  has  never  been  long 
exemplified  on  earth,  and  never  will  be,  until 
the  mass  of  the  people  shall  be,  what  they 
ought  to  be,  honest,  patriotic,  and  enlightened 
— "it  (a  democracy)  is  a  government  that  hath 
no  respect  to  the  few,  but  to  the  many — 
wherein,  though  there  be  an  equality  amongst 
all  men  with  respect  to  their  private  contro 
versies,  yet,  in  conferring  dignities,  one  man 
is  preferred  to  another,  not  according  to  the 
reputation  of  his  power,  but  of  his  virtue;  and 
is  not  put  back  through  the  poverty  or  obscu 
rity  of  his  person,  as  long  as  he  can  do  service 
to  Commonwealth: — in  which  all  are  obedient 
to  the  laws,  and  living  not  only  free  in  the  ad 
ministration  of  them,  but  also  with  one  another 
— void  of  jealousy  in  their  ordinary  intercourse 
— not  offended  at  any  man  for  following  his 
own  humor,  nor  casting  on  any,  censure  or 
sour  looks — they  converse  freely  with  one  an 
other  without  fear  of  offence,  fearing  only  to 
transgress  against  the  public." 

Such  a  society  and  such  a  government,  pre 
suppose  the  prevalence  of  true  knowledge, 
and  of  private  and  public  virtue  approximating 
ane  qualization  of  intellectual  and  moral  power. 

As  long  as  public  opinion  controls  the  laws, 
and  whenever  the  moral  condition  of  the  mass 
of  our  free  population  is  such  as  to  enable  a 
favored  and  selfish  few  to  create  or  give  tone 
to  that  opinion,  there  can  be  no  constitutional 
or  legal  security;  public  functionaries  will  not 
be  selected  for  their  merit,  but  for  their  obse 
quiousness  and  destitution  of  principle;  vulgar 
partyism,  altogether    personal,   will    prevail; 
public  trusts  will  be  prostituted   to  personal  j 
aggrandizement;  public  agents  instead  of  being  ' 
controlled  by,  will  control  public  opinion;  and! 
the  offices  and  public  property  of  the  people 
will  be  considered  us  spoils  by  the  dominant  j 
party;  and  yet  all  will  be  done  in  the  abused 
name  and  under  the  easy  pretence  of  mock 
patriotism  and  democracy. 

Kings,  and  Priests,  and  Demagogues,  and 
all  men  of  selfish  and  sinister  ambition  have 


ever  been,  and  will  always  be  secretly  op 
posed  to  the  dissemination,  among  the  common 
people,  of  the  ennobling  light  of  true  knowl 
edge  and  personal  independence.  Honest  and 
disinterested  patriots  and  philanthropists  alone, 
are  sincerely  desirous  of  the  diffusion  of  uni 
versal  moral  light,  and  practical  equality  and 
independence. 

Protestantism  and  popiilar  instruction  wer« 
coeval;  and,  as  twin-sisters,  they  have  gone 
together,  and  co-operated  in  the  cause  of  hu 
man  liberty  and  happiness.  And  all  history 
proves,  that  no  people  can  be  free  or  happy, 
unless  the  great  body  be  enlightened  and  im 
proved  by  proper  education  and  discipline — 
moral,  physical,  RELIGIOUS  and  POLITI 
CAL.  This  will  be  the  only  effectual  anti 
dote  against  the  pestilent  aristocracy  of  sinis 
ter  patronage:  which,  official  and  unofficial,  is 
the  great  canker  of  our  institutions. 

Let  no  true  lover  of  his  country's  glory  or 
the  happiness  of  his  race  doubt  that  their  only 
true  safeguard  is  the  virtue  and  intelligence 
of  the  mass  of  the  people.  It  is  the  first  duty, 
as  it  is  the  highest  interest,  of  the  common - 
Avealth,  to  provide  all  necessary  and  proper 
means  for  educating,  or  for  compelling  parents 
to  educate,  in  a  suitable  manner,  every  child 
of  the  commonwealth,  so  far  as  to  establish 
right  habits  and  principles,  and  impart  compe 
tent  knowledge,  of  whatever — civil,  moral,  or 
physical — freemen  ought  to  know,  in  order  to 
enjoy  as  they  ought  and  might,  the  comforts 
and  blessings  of  rational  nature,  and  to  pre 
serve,  as  they  should  and  may,  their  civil 
liberties  and  political  rights;  and,  more  essen 
tially,  a  proper  opportunity  should  be  afforded 
to  every  citizen,  howeve,  poor  or  friendless,  for 
acquiring  an  accurate  knowledge  of  his  politi 
cal  rights  and  obligations.  Such  moral  dis 
cipline  is  possible,  and  might  be  made  univer 
sal  and  successful,  by  a  provident,  enlightened 
and  determined  public  authority  and  patronage. 
And  the  first  civil  duty  of  every  free  State  is, 
to  effect  such  an  object,  as  far  as  it  may  be 
possible,  by  the  liberal,  fearless,  and  per 
severing  application  of  the  proper  and  requisite 
means.  And  then  it  would  be  free  indeed — 
then  its  institutions  and  laws  would  be  effectual; 
and  then  its  citizens  might,  with  some  truth, 
be  called  freemen,  and  not,  as  many  must  be, 
without  efficient  legislation  on  the  subject  of 
popular  instruction,  slaves  to  passion  and  ig 
norance,  and  blind  puppets  in  the  hands  of  the 
more  wealthy  and  enlightened  few,  who  must 
govern  them  absolutely — and  then  the  people 
would  become  more  rational,  and  less  sensual, 
more  moral,  more  industrious,  more  happy, 
and  much  more  honored  and  powerful,  as  well 
as  more  intelligent  and  virtuous. 

Without  the  aid  of  public  authority  and  mu 
nificence  an  effectual  system  for  diffusing,  in  a. 
proper  manner  and  to  a  proper  extent,  the  use 
ful  elements  of  a  popular  instruction,  can  never 
exist;  and,  without  such  a  system  practically 
Micl  universally  enforced,  these  States  will 


DELIVERED  BEFORE  THE  LAW  CLASS. 


205 


never  do  justice  to  the  people  or  their  institu 
tions.  Everything  else  is  comparatively  worth 
less;  this,  alone,  will  be  everything;  and,  with 
out  it,  nothing  else  will  avail  or  be  secure. 

L«t  the  Stat«s  of  this  Union  but  folloAV,  at 
once,  the  example  of  Prussia  [in  this  respect, 
and  ere  long,  the  Union  itself  will  be  harmon 
ized,  like  the  fabled  Memnon,  when  tuned  and 
inspired  by  the  rays  of  the  Sun.  And  then 
we,  of  this  generation  who  have  mourned  over 
the  symptoms  of  a  retrograde  movement  in 
morals,  and  have  felt  alarm  at  the  rapacity  of 
the  spirit  of  commercial  and  political  adven 
ture  which,  of  late,  has  but  too  much,  charac- 
thrized  our  country,  may  hope  for  better  pros 
pects  and  brighter  days  for  the  Republic,  and 


may  at  last  be  solaced  with  an  assurance  that 
when  we  shall  have  gone  to  our  fathers,  our 
ashes  and  our  children  may  repose  in  safety 
under  the  unmarred  flag  of  the  Union,  and  the 
sure  protection  of  wise  and  just  laws,  wisely 
and  justly  administered.  And  then,  too,  we 
might  well  hope,  that  the  Star  Spangled  Ban 
ner  may  long  wave,  o'er  this  land  of  the  free 
and  home  of  the  brave;  and  that,  though  our 
Washington,  and  Franklin,  and  Madison,  and 
Marshall  are  gone,  our  country's  hallowed  flag, 
at  no  distant  day,  rising  higher  and  higher, 
will  float  aloft  with  the  blood-stained  ensign 
of  the  cross,  to  cheer  and  to  giiide,  and  to  bless 
a  regenerated  WORLD. 


INTRODUCTORY     ADDRESS 

ON    THE    HISTORY    AND    NATURE    OF    EQUITY 

[Delivered  before  the  Law  Class  of  Transylvania,  November  1837.] 


WBBJS  we,  in  either  the  subject  or  the  manner  | 
of  this  initial  address,  to  consult  your  taste  in 
stead  of  your  reason,  it  would  not  be,  as  we 
haye  determined  that  it  shall  be,  an  appropri 
ate  precursor  to  the  didatic  course  of  the  com 
ing  winter. 

You  have  come  here  to  learn,  and  it  is  my 
business  to  try  to  teach — from  the  beginning 
to  the  end  of  the  session — the  rudiments  of  the 
most  indispensable  and  comprehensive  of  all 
the  departments  of  human  science.  Law, 
natural  and  civil,  elementary  and  practical,  is 
not  only  multiform,  but  illimitable — embracing 
and  upholding  all  that  is  most  interesting  to 
individual  and  to  social  man,  upon  earth. 

And  therefore,  as  our  aim  is  utility  rather 
than  show — naked  truth  rather  than  fantas 
tic  drapery — it  is  my  present  purpose  to  make 
a  few  yery  plain  and  general  suggestions  con 
cerning  one  of  the  branches  of  civil  jurispru 
dence;  a  topic  which  cannot  be  made  both  use 
ful  to  the  student  and  alluring  to  miscellaneous 
auditors.  Our  subject,  being  one  of  dry,  deep, 
and  complicated  law,  appeals  to  the  sober  and 
discerning  intelligence  of  the  understanding, 
scorns  all  the  embellishments  of  poetry,  and 
needs  none  of  the  graces  of  rhetoric. 

Tiat  code  of  unwritten  reason  called  "the 
common  law"  established  in  England  and 
adopted,  with  various  modifications,  by  all  ex 
cept  one  of  our  North  American  States,  is^di- 
vided  into  two  primordial  departments  distin 
guished  by  the  incongruous  titles  "LAW"  and 
''EQUITY."  To  exhibit  an  intelligible  out 
line  of  the  nature,  origin,  and  history  of  the 
latter  is  the  purpose  of  this  preliminary  dis 
course. 

Though  its  peculiar  title  is  inappropriate 
and  delusive,  and  many  persons,  therefore, 
yet  erroneously  look  upon  it  either  as  arbitrary 
and  indeterminate,  or  as  synonomous  with 
moral  justice,  nevertheless,  Equity  is  as  consis 
tent,  as  well  defined,  and  as  scientific  as  any 
other  portion,  of  the  common  law.  It  was,  in 
its  rude  and  remote  origin,  as  arbitrary  and 
capricious  as  the  unregulated  discretion  of  a 
king  or  of  his  arrogant  chancellor.  But, 
though,  for  some  succeeding  ages  and  even  as 
late  as  the  days  of  Lord  Chancellor  Bacon,  it 
was  still  immature  and  altogether  inconsistant 


with  the  certainty  and  stability  of  a  known 
and  established  code  of  law,  it  has,  at  last, 
been  matured  by  the  enlightened  reason  of 
many  consecutive  generations  into  a  beautiful 
system  of  jurisprudence,  regulated  by  princi 
ples  of  rational  law,  corresponding  with  the 
genius  of  our  civil  institutions.  And  now  no 
branch  of  American  jurisprudence  is  more 
elementary,  and,  excepting  our  organic  laws, 
none  is  more  useful  in  practice,  than  that  de 
nominated  equity.  Still,  lawyers  and  judges 
are  generally  less  acquainted  with  it  than  with 
any  other  branch  of  elementary,  or  practical 
law;  and  even  some  of  these  seem  yet  to  con 
sider  it  as  an  indefinable  something,  above 
positive  law,  and  as  uncertain  as  popular  or 
personal  conscience. 

Although  law  and  equity  are  generally  con 
tradistinguished,  the  one  from  the  other,  yet, 
when  considered  with  proper  precision,  they 
are  essentially  identical  in  principle.  Equity 
is  law — otherwise  it  would  be  inconsistent 
with  that  certainty  and  security  in  the  admin 
istration  of  civil  affairs  which  the  supremacy 
of  laws  can  alone  ensure.  Equity  is  justice  too; 
but  it,  is  justice  in  a  peculiar  and  technical 
sense;  not  variable,  like  the  changing  senti 
ments  of  the  chancellor  or  the  multitude,  but 
as  constant  as  the  fixed  and  rational  principles 
of  civil  right  and  civil  law.  In  a  judicial 
sense  that  cannot  be  equitable  which  is  incon 
sistent  with  the  law  of  the  land.  In  the  proper 
sense,  a  court  of  equity  can  neither  make  nor 
abrogate  any  rule  of  law;  nor  enforce  what  the 
law  forbids;  nor  relieve  from  that  which  the 
law  enjoins;  nor  decide  otherwise  than  accor 
ding  to  the  principle  and  spirit  of  established 
law;  nor  interpret  a  contract  or  a  statute  so  as 
to  give  to  either  an  import  different  from  that 
which  should  be  ascribed  to  it  by  any  other 
judicial  tribunal — the  intention  of  the  con 
tracting  parties  is  their  contract,  and  the  in 
tention  of  the  Legislature  is  the  law  in  every 
forum,  and  should,  in  all,  be  sought  and  deter 
mined  according  to  the  same  principles  and 
tests.  In  all  these  particulars,  and  in  every 
essential  respect,  equity  is  law,  and  law  is 
equity;  and  each,  therefore,  is  justice  according 
to  the  principles  of  civil  right  and  obligation. 
Equity  is  but  tho  philosophy  of  law — the 


HISTORY  AND  NATURE  OF  EQUITY. 


307 


spirit  and  end  of  the  law;  and  it  may  there 
fore  be,  not  'inaptly,  defined  to  be  rectified  law 
administered  in  England  by  the  lord  chancel 
lor,  one  of  the  king's  ministers,  and  by  subor 
dinate  courts  of  chancery,  and  in  the  most  of 
the  states  of  the  -N".  American  Union  by  courts 
of  equity,  in  peculiar  modes  better  adapted 
to  the  ends  of  perfect  justice  than  the  technical 
and  imperfect  remedies  but  too  strictly  adhered 
to  in  those  ordinary  tribunals  called  "common 
law  courts." 

With  the  exception  of  a  very  few  anomalies, 
the  only  difference  between  law  and  equity  is, 
not  in  the  principle  or  rule  or  right,  but  in  the 
remedy  merely — and  is,  therefore,  chiefly  modal 
— and  this  remedial  difference  is  threefold — 
that  is:  1st.  In  the  mode  of  suit.  2d.  In  the 
mode  of  proof  and  of  trial;  and,  3d.  and  prin 
cipally,  in  the  mode  of  relief.  I.  An  action  in 
"a  common  law  court"  is  brought  by  a  writ  and 
declaration  of  a  prescribed  form;  the  actor  is 
called  plaintiff,  and  a  perilous  and  vexatious 
technicality  is  observed.  A  suit  in  equity  is 
instituted  by  a  summons  and  a  bill  in  the  style 
of  a  petition  adapted  to  the  facts  of  the  case 
and  uninfluenced  by  form  or  technicality,  and 
the  complaining  party  is  called  the  complain 
ant.  2d.  In  an  action  in  a  "court  of  law,"  the 
proof  is  generally  oral  by  witnesses  in  court, 
and  the  defendant  cannot  be  compelled  to 
make  any  disclosure  against  himself;  in  a  suit 
in  equity,  the  proof  is  documentary;  consist 
ing  1st,  of  the  answer  of  the  defendant,  who 
may  always,  excepting  in  a  few  peculiar  cases, 
be  compelled  to  respond  upon  oath  to  all  the 
material  allegation  of  the  bill;  an  efficient  pro 
cedure  adopted  from  the  modern  or  Justinane- 
an  civil  law,  and  also  from  the  ecclesiastical 
courts,  which  appeal  to  the  conscience  of  the 
parties  litigant;  and  2d,  by  depositions  in  writ 
ing,  which  may  be  taken  by  a  commission  or 
dedimus  potestatum,  beyond  'the  jurisdiction  of 
the  court  where  a  common  law  tribunal  *vould 
hare  no  authority  to  summons  a  witness;  and 
the  trial  in  courts  of  equity,  in  imitation  of 
trials  before  the  Roman  Prretor  and  the  courts 
Christian,  is  generally  by  the  court  without 
the  intervention  of  a  jury;  and  3rd,  the  relief 
in  equity,  unlike  that  given  by  &  judgment  of  a 
common  law  court  in  a  prescribed  or  an  unva 
rying  form,  whatever  may  be  the  character  of 
the  case,  is  by  a  decretal  order  called  a  decree, 
either  interlocutory  or  final,  giving  a  full  and 
appropriate  measure  of  justice  according  to 
the  circumstances  of  the  case,  and  effectuating 
the  purpose  for  which  all  judicial  remedy  is 
given ;  and  which,  not  nnfrequently,  could'not 
be  done  by  a  court  which  is  restricted  to  one 
simple  mode  of  relief  prescribed  for  and  pecu 
liar  to  each  form  of  common  law  suit.  A  court 
of  equity,  moreover,  may  enforce  its  decrees 
and  orders,  in  its  own  way,  and  according  to 
its  own  discretion,  by  attachment  or  otherwise; 
but  a  court  of  law  can  enforce  its  judgments 
by  execution  only.  And,  as  to  parties  and 
subjects  of  controversy,  there  is  also  an  impor 
tant  difference  between  suits  in  courts  of  equity 
and  actions  in  courts  of  common  law.  In  a 
common  law  action,  none  but  those  who  have  \ 

a 


the  legal  right,  or  against  whom  there  is  a  legal 
demand,  can  be  made  parties;  and  generally, 
but  one  causa  of  action  can  be  litigated  in  one 
suit;  but  a  court  of  equity,  anxious  to  prevent 
multiplicity  and  to  make  its  decrees  conclusive 
as  to  all  matters,  in  any  degree  connected,  and 
between  all  persons  equitably  interested  there 
in,  either  immediately  or  consequentially,  and 
who  may  be  anywise  affected,  will  not  only 
permit,  but  will  require  all  subjects  of  contro 
versy  thus  connected  to  be  united  in  one  suit, 
and 'all  persons  thus  interested  or  who  may  be 
thns  affected  by  its  decree  to  be  made  co-par 
ties,  or  antagonists  parties;  and  it  is  not  mate 
rial,  if  there  be  opposing  parties,  complaining 
and  defending,  whether  those  interested  on  the 
same  side  be  co-complainants  and  others  of 
them  be  made  defendants,  excepting  that  all 
who  have  a  joint  interest  would  generally  bo 
more  appropriately  associated  as  co-parties. 

In  all  those  distinctive  particulars,  courts  of 
equity  possess  an  eminent  advantage  over 
those  of  strict  common  law  jurisdiction;  for 
example;  1st,  One  suit  in  equity  may  effect 
the  same  end,  which  several  actions  at  law 
might  not,  as  certainly  and  cheaply,  attain. 
2nd.  As  there  is  no  technicality  in  the  plead 
ing  in  equity,  justice  is  not  liable  to  be  vexed, 
retarded,  or  frustrated  by  cobweb  forms  in 
suits  in  chancery,  as  is  but  too  often  the  case 
in  common  law  actions.  3rd.  The  parties 
having  a  right  in  equity  to  mutual  discoveries 
upon  oath,  may  thus  establish  important  facts 
which  could  not  always  be  shown  in  legal  ac 
tions.  4th.  The  depositions  of  witnesses  may 
be  taken  in  suits  in  equity,  when  in  conse 
quence  of  their  remote  residence,  their  perso 
nal  attendance  in  other  courts  could  not  be 
procured.  5th.  The  modes  of  proceeding  in 
equity  may  secure  an  economy,  and  a  certainty 
and  security,  which  might  be,  elsewhere,  unat 
tainable.  6th.  An  enlightened  and  impartial 
judge  is  more  apt  to  make  proper  deductions 
from  facts  than  an  ordinary  jury,  and  if  a 
judge,  sitting  in  equity,  desire  an  inquisition 
he  can  have  it  for  the  purpose  of  informing 
and  aiding  him  in  doubtful  questions  of  fact; 
but  once  having  jurisdiction,  he  will  not  remit 
a  case  to  a  common  law  tribunal  for  trial,  and 
is  never  required  to  impannel  a  jury  except  in  a 
few  cases,  in  which  some  statute  directs  it;  as, 
for  example,  where  there  is  an  issue  of  devisa- 
mt  vel  non.  And  certainly  there  is,  at  this  day, 
and  in  this  country,  no  peculiar  value  in  the 
trial  by  jury  except  in  criminal  cases,  and  in 
those,  perhaps,  of  tort;  in  none  of  which,  has 
a  court  of  equity,  jurisdiction.  7th.  But  the 
most  obvious  and  eminent  advantage  resulting 
from  proceeding  in  a  court  of  equity  arises 
from  the  power  to  adapt  the  relief  to  the  exi 
gencies  of  the  case.  Thus,  for  example,  whilst 
for  a  breach  of  contract,  a  court  of  common 
law  can  onlv  adjudge  damages  often  inade 
quate,  a  court  of  equity  may  compel  a  specific 
execution;  and  whilst  for  fraud,  damages  only 
can  be  adjudged  in  a  common  law  action,  a 
rescission  of  the  contract,  and  a  restoration  of 
property,  and  a  reinstatement  of  the  parties 
in-(statu  quo,'  may;;be  decreed  by  a  court  of 


INTRODUCTORY  ADDRESS  ON  THE 


equity;  and  thus  tho  true  spirit  and  end  of  the 
law  inav  be  effectuated  iu  equity,  when  the  ac 
customed  technicalities  in  other  courts  mi^ht 
not  only  embarrass,  but  altogether  defeat 
them. 

The  distinction  between  equity  and  law,  as 
separate  departments  cf  jurisprudence,  and 
the  existence  of  different  tribunals  called 
"courts  of  equity,"  in  which  equity  only  is  ad 
ministered,  and  of  others  called  "courts  of  laic,'' 
in  which  technical  law  alone  is  applied,  is  an 
anomaly  peculiar  to  England  and  to  some  of 
the  states  of  our  Uniou,  which,  as  well  as  the 
true  nature  of  equity  itself,  can  be  satisfacto 
rily  explained  and  understood  only  by  the  his 
tory  of  the  common  law  of  England,  from  the 
origin  of  equitable  jurisdiction;  which  was 
first  chiefly  assumed  by  the  chancellor  of  Eng 
land,  and  which,  after  violent  and  protracted 
conflicts  between  that  officer  and  the  common 
\&w  judges,  has  at  last  attained  its  present  ma 
turity  and  firm  establishment. 

The  chancellor  of  England  now  possesses 
both  legal  and  equitable  jurisdiction;  and  is, 
therefore,  a  judicial  as  well  as  a  ministerial  offi 
cer.  Anciently  he  had  no  other  authority  than 
that  which  was  delegated  to  him  by  the  crown, 
nnd  was,  therefore,  ministerial  or  executive. 
As  the  fountain  of  justice,  the  king  had  the 
prerogative  right  of  issuing  original  writs  and 
cancelling  letters  patent,  tfcc.,  and  as  parens 
patrioc,  he  had  the  like  right  to  the  custody  of 
idiots  and  lunatics,  the  guardianship  of  in 
fants,  <fcc.;  and  these  being  onerous  to  majes 
ty,  were  delegated  to  his  chancellor  as  his  of 
ficial  organ  appointed  by  only  delivering  to 
him  the  great  seal  of  which  he  is  the  legal  de 
pository.  As  the  powers  thus  delegated  were 
altogether  prerogative,  the  chancellor,  in  re 
spect  to  them,  possessed  what  is  denominated 
an  ordinary  jurisdiction,  coeval  with  the 
authentic  history  of  the  common  law  itself. 
And  therefore,  to  the  extent  of  those  delegated 
powers,  the  British  chancery  was  as  ancient 
as  any  of  the  common  law  courts  of  England. 
But  at  first  the  chancellor  had  no  equitable  ju 
risdiction;  this  he  afterwards  mainly  assumed, 
as  will  presently  appear:  and  when  assumed 
and  established,  it  was  called  his  "extraordi 
nary  jurisdiction,"  in  contradistinction  to  his 
delegated  legal  authority,,  denominated  his 
"ordinary  jurisdiction."  And  though  the 
same  officer  acU  now  in  both  spheres,  his  pow 
ers  in  each  are  as  distinct  and  independent  as 
the  jurisdiction  of  a  court  of  law  and  that  of  a 
court  of  equity  are  understood  to  be  here. 
Consequently,  n  mere  court  of  equity  here  has 
none  of  the  prerogative  powers  of  the  chancel 
lor  of  England,  except  so  far  as  they  may 
have  been  expressly  delegated  by  statute. — 
Such  courts  have  no  inherent  authority  to  is 
sue  judicial  writs,  nor  to  cancel  letters  patent, 
nor  to  appoint  guardians  for  infants,  except 
ing  where,  an  infant  being  a  party  to  ft  suit  in 
equity,  the  judge,  having  jurisdiction  over 
the  case,  has  the  incidental  power  to  appoint 
a  guardian  ad  Ilium,  or  a  curator,  to  take 
care  of  property  involved  in  the  suit;  nor  to 
take  custody  of  lunatics  and  idiots;  nor  to  hold 


inquisition  as  to  lunacy  or  idiocy.  The  cog 
nizance  of  all  such  cases  belongs  to  the  chan 
cellor  of  England,  not  as  a  jnd.sre  in  equity, 
but  as  the  ministerial  organ  of  the  king;  and 
when  there  is  an  issue  of  fact  in  any  such  case 
he  cannot  try  it,  but  must  remit  it  to  another 
tribunal  to  be  tried  by  jury.  Lord  Redesdale 
said  that  "the  jurisdiction  in  the  three  cases 
of  infants,  idiots  or  lunatics  and  charities, 
does  not  belong  to  the  court  of  chancery  as  a 
court  of  equity,  but  as  administering  the  pre 
rogative  and  duties  of  the  crown;"  and  this  is 
doubtless  true  with  this  qualification,  that 
when  a  charity  is  connected  with  an  available 
trust,  a  court  of  equity  may,  as  in  other  cases 
of  trusts,  take  cognizance  of  it,  but  not  be 
cause  it  is  a  charily;  for  as  a  mere  charity,  the 
chancellor,  acting  as  the  agent  of  the  king, 
and  not  as  a  judge  in  equity,  had  a  delegated 
power  over  it  to  the  exieut  of  the  pre-existent 
prerogative  authority  of  the  crown. 

The  term  chancellor  is  borrowed  from  impe 
rial  Rome,  where  the  emperor  had  a  confiden 
tial  minister  who  acted  as  his  register  and  se 
cretary,  and  was  called  cancellarius ,  from  the 
circumstance,  as  many  antiquaries  believe, 
that  the  place  where  he  usually  did  his  official 
business  was  enclosed  by  cross  bars  called 
cancelli. 

In  England  there  was  a  similar  officer  with 
the  like  ministerial  functions,  long  prior  to  the 
Norman  conquest,  and  even  from  time  imme 
morial — to  whom  were  confided  the  powers 
just  described,  and  some  other  prerogatives  of 
the  crown. 

But  as  late  as  the  reign  of  Henry  II,  the 
chancellor  had  no  equitable  jurisdiction;  for 
neither  Glanville  nor  Bracton  has  alluded  to  a 
court  of  equity  as  existing  in  his  day.  And 
though  many  "believe  that  the  chancellor  had, 
to  some  small  extent,  assumed  equitable  juris 
diction  sometime  prior  to  the  reign  of  Edward 
III,  yet  there  is  no  satisfactory  memorial  of 
the  recognition,  or  even  assumption  of  such  au 
thority,  until  the  twenty-second  year  of  that 
King's  reign;  when  the  sheriffs  of  London 
were  ordered  to  give  notice  that  "all  such  busi 
ness  as ,  by  special  grace,  was  cognizable  by 
the  King,  should  thenceforth  be  prosecuted  be 
fore  the  chancellor;"  which  was  afterwards, 
in  the  37th  year  of  the  same  King's  reign, 
ratified  by  an  act  of  Parliament.  The  power 
thus  delegated  was  the  arbitrary  and  unregu 
lated  prerogative,  which  had  been  immemo- 
rially  exercised  by  the  King,  of  redressing 
grievances,  and  even  controlling  suits  and 
judgments,  upon  the  petitions  of  his  complain 
ing  subjects,  and  which  had,  doubtless,  been 
occasionally  delegated  to  the  chancellor  prior 
to  the  general  delegation  sanctioned  by  the  act 
of  Parliament.  And  here  we  have  the  prin 
cipal  reason  why  bills  in  chancery  are  yet  in 
the  style  of  petitions. 

But  a  jurisdiction,  more  like  that  now  con 
sidered  equitable,  was,  about  the  same  time, 
Erobably  afterwards,  assumed  by  the  chancel- 
)r. 

The  Roman  Prietor,  who  decided  according 
to  rules  prescribed  by  himself,  and  called  jus 


HISTORY  AND  NATURE  OP  EQUITY. 


honorarium,  exercised  an  arbitrary  discretion 
in  overruling  that  which  he  deemed  harsh  or 
unjust,  and  supplying  whatever  he  considered 
defective  in  the  positive  law.  The  emperor 
Augustus,  by  one  of  his  imperial  edicts,  or 
dered  the  Prsetor  to  enforce  the  secret  trusts 
which,  under  the  name  of  uses,  had  been  fre 
quently  contrived  for  the  purpose  of  evading 
the  law  restricting  testamentary  dispositions 
of  property  to  certain  persons,  for  whose  use 
the  dying  owner,  in  order  to  effectuate  his  own 
wishes,  devised  it,  with  a  secret  trust  to  an 
other.  But,  as  there  was  no  power  to  compel 
a  discovery — the  remedy  thus  prescribed  by 
Augustus  was  frequently  unavailing — and 
therefore  an  edict  of  Justinian,  following  the 
example  of  the  ecclesiastical  courts,  empow 
ered  the  Prcetor  to  compel  the  respondent  to 
answer  the  complainant  on  oath. 

Sometime  in  the  reign  of  Edward  III,  for 
the  purpose  of  evading  the  mortmain  acts,  the 
ecclesiastical  party  in  England  resorted  to  the 
fioman  device  of  uses,  which  afterwards,  du 
ring  the  desolating  civil  wars  between  the 
houses  of  York  and  Lancaster,  were  adopted 
by  both  parties  as  a  common  mode  of  convey 
ance,  to  secure  the  beneficial  interest  in  lanas 
from  forfeiture  to  the  successful  party;  and 
those  trusts,  though  not  recognized  by  the  an 
cient  common  law,  which  protected  the  legal 
title  only,  were  sustained  and  enforced  in 
England  by  the  chancellor,  who,  being  in 
those  days,  an  ecclesiastic  and  instructed  in 
the  civil  law,  adopted  many  of  its  principles 
even  though  they  conflicted  with  those  of 
the  common  law.  The  chancellor  of  Eng 
land  framed  and  issued  writs  in  all  actions 
in  the  common  law  courts;  and  when,  by 
the  extension  of  business,  the  expansion  of 
commerce,  and  the  progress  of  social  devel 
opment,  the  anciently  prescribed  forms  became 
unsuitable  for  new  cases,  he  refused  to  pre 
scribe  a  new  and  appropriate  form  of  legal 
process,  and  chose  rather  to  administer  relief 
ill  his  own  court  on  petition  to  himself  as 
chancellor.  And  this  was,  doubtless,  one  of 
the  sources  of  his  jurisdiction  in  equity.  The 
first  case  in  equity  of  which  the  British  ar 
chives,  as  far  as  hitherto  explored,  furnish  any 
authentic  history,  occurred  in  the  reign  of  Rich 
ard  II,  and  wasla  case  of  trespass,  in  which  the 
chancellor  interfered  and  controlled  a  common 
law  court,  and  relieved  the  petitioner,  on  the 
alleged  ground  of  the  partiality  and  sinister  in 
fluence  of  the  sheriff.  This,  though  not  allowa 
ble  now,  was  at  that  day,  only  what  the  king 
had  been  in  the  habitof  doing"  upon  petition  to 
himself  antecedently  to  the  delegation  to  the 
chancellor  of  the  once  unlimited  royal  prerog 
ative  of  redressing  grievances. 

But  such  cases,  and  even  those  of  trust, 
which  may  have  been  acted  on  by  the  chan 
cellor  prior  to  the  fifth  of  Richard  II,  must 
have  been,  not  only  rare,  but  exparte,  and 
therefore,  according  to  the  notions  of  more  mod 
ern  times,  extrajudicial;  because,  until  that 
year,  there  was  no  mode  of  compelling  the 
appearance  of  the  party  complained  against. 
But  during  that  year  John  Waltham,  bishop 
27 


of  Salisbury,  who  was  keeper  of  the  rolls, 
adopted,  for  the  first  time  in  the  chancery 
court,  a  summons  for  compelling — under  a 
prescribed  penalty,  and  therefore  called  a 
subpoena — an  appearance  and  answer  upon 
oath.  And  from  that  time  the  equitable  juris 
diction  of  the  chancellor  was  rapidly  extended, 
until,  tho'  it  was  not  only  unregulated,  but  had 
to  a  great  extent  been  usurped,  and,  therefore, 
had  awakened  the  jealousy  of  the  common  law 
yers,  it  was  legalized  by  the  statute  of  seven 
teenth,  Richard  II,  to  the  extent  to  which  it 
had  been  previously  either  delegated  by  the 
King  or  usurped  by  the  chancellor.  After 
wards,  the  chancellor,  encroaching  more  and 
more,  on  the  courts  of  common  law,  and  de 
ciding  according  to  his  own  caprice,  without 
regard  to  any  fixed  rule  or  uniform  practice, 
a  statute  of  4,  Henry  IV,  declared  that  judg 
ments  should  be  irrevocable  in  any  other  mode 
than  by  writ  of  error  or  attaint.  But  contin 
ued  extensions  and  encroachments  by  subse 
quent  chancellors  having  occasioned  the  cele 
brated  controversy  between  Lord  Coke,  then 
chief  justice  of  the  King's  bench,  and  chan 
cellor  Ellesmcre,  King  James  and  his  coun 
sellors  determined  that,  though  the  chancellor 
should  have  no  power  to  reverse  or  overrule  a 
judgment  of  a  common  law  court  on  the 
ground  of  error,  he  might,  by  acting  on  the 
person  of  the  creditor,  enjoin  the  enforcement 
of  his  judgment  if  there  should  be  any  equita 
ble  ground,  not  available  in  the  common  law 
court,  for  enjoining  it. 

Cardinal  "Wolsey,  who  was,  for  8ome  time, 
in  the  reign  of  Henry  III,  chancellor  of  Eng- 
land,  greatly  extended  the  equitable  jurisdic 
tion  of  that  court;  but  his  decisions,  though 
generally  approved,  were  as  arbitrary  and  ca 
pricious  as  his  own  will. 

And  though  Sir  Thomas  Moore,  who  suc 
ceeded  Wolsey,  and  was  the  first  chancellor 
who  had  studied  the  common  law,  and  Bacon, 
an  enlightened  lawyer  and  philosopher,  who 
was  afterwards  chancellor,  endeavored  to  reg 
ulate  equity  by  principle,  and  thus  to  give  it 
something  like  system  and  certainty,  it  was 
not  matured  into  anything  like  a  science,  but 
was  considered  as,  in  a  great  degree,  arbitra 
ry  and  unlimited,  until  Lord  Nottingham, 
(Sir  Hineage  Finch,)  who  was,  for  nine  years, 
chancellor  in  the  reign  of  Charles  II,  brought 
it  from  chaos  into  comparative  order  and  con 
sistency.  And  from  his  day  the  chancellor's 
decrees  in  equity,  which  had  never  before 
been  reported  or  admitted  to  be  binding  as 
precedents,  were  regarded  as  authoritative — 
and  thus  Lord  Hardwicke,  and  Lord  Somers, 
and  other  distinguished  chancellors — all  em 
inently  learned  in  the  principles  of  both  the 
common  and  the  civil  law,  following,  as  far 
as  they  should  have  done,  former  precedents, 
and  always  deciding  according  to  their  judi 
cial  notions  of  principle  and  analogy— finally 
established,  upon  the  combined  principles  of 
the  civil  and  the  common  law,  an  harmonious 
and  authoritative  system  of  equitable  juris 
prudence,  deemed  far  superior  to  either  of  the 
elements  of  which  it  is  compounded. 


210 


INTRODUCTORY  ADDRESS  ON  THE 


And  now,  as  already  suggested,  the  chief 
difference  between  a  court  of  law  and  a  court 
of  equity  is,  that  the  former  is  restricted  in  its 
proceedings  to  prescribed  forms,  which  are  not 
unfrequently  insufficient  for  fulfilling  the  end 
of  the  law  and  securing  a  full  measure  of  jus 
tice  according  to  the  spirit  of  rational  jurispru 
dence,  and  the  other,  looking  to  the  aim  of  the 
law,  adapts  its  remedies,  and  its  modes,  and 
its  measure  of  relief  to  the  exigencies  of  each 
case,  and  administers  that  justice  which  it 
was  the  object  of  the  law  to  secure.  The  hi- 
per-technicality  of  the  ancient  common  law 
courts  of  England,  and  their  punctillious  ad 
herence  to  forms  and  remedies  often  inappro 
priafce  and  inadequate,  induced  the  chancellor 
to  assume  a  jurisdiction  which  the  public 
opinion  finally  approved  and  sustained,  and 
which,  when  regulated,  as  now,  by  the  princi 
ples  of  law,  subserved  the  purposes  of  justice, 
and  remedied  a  defective  and  often  perverted 
judicial  administration,  without  either  sub 
verting  the  policy  or  frustrating  the  spirit  of 
the  common  law,  or  shaking  that  stability 
which  can  be  secured  only  by  the  supremacy 
of  an  established  and  known  judicial  system. 
No  despotism  could  be  more  intolerable  or  vex 
atious  than  that  of  arbitrary  and  erratic  dis 
cretion;  and  therefore  equity  would  be  a  mon 
ster,  if,  as  in  its  infancy,  it  were  now  either 
lawless,  capricious,  or  uncertain.  But 
enough  has  been  already  said  to  prove  that 
equity  is  not  now,  in  England  or  America, 
what  it  was  prior  to  the  time  of  Lord  Notting 
ham,  and  in  the  days  of  Grotius  and  of  Poffen- 
dorf,  nor  the  laximentum  legis  of  Cicero — and 
to  show  that  distinguished  jurists  in  modern 
times,  feeling  the  necessity  of  uniformity  and 
stability  in  the  judicial  administration  of  jus 
tice,  and  co-operating  with  the  spirit  of  the 
age  in  which  they  lived,  have  finally  succeed 
ed  in  circumscribing  equitable  jurisdiction  and 
power,  within  rational  and  well-defined 
bounds,  prescribed  by  principle  and  analogy,- 
and  have  thus  blended  the  harmonies  of  the 
common  and  the  civil  law — each  the  offspring 
of  a  prolonged  existence  and  rectified  reason, 
that  belong  to  no  single  age  of  the  world. 

Even  at  Rome,  the  various  rules  adopted  by 
different  Praetors,  and  especially  the  prece 
dents  of  successive  judges  of  that  class,  to 
whom  trusts  or  cases  Jidei  commissa  were  con 
fided,  were,  in  the  progress  of  time,  collated 
and  made  authoritative  and  binding  by  "the 
perpetual  edict." 

But  no  system  of  equity  ever  equalled  that 
matured  by  the  wisdom  of  the  Anglo-Saxon 
race,  and  which  we  are  now  considering. 

Equitable  jurisdiction,  as  now  here  and  in 
England  established,  is  limited  to  civil  cases 
arisingfrom  contract  express  or  implied,  and 
is  well  defined  by  plain  and  inviolable  rules. 

1st.  The  jurisdiction  of  a  court  of  equity  is 
either  preventative  or  remedial .  As  prevention 
it  better  than  cure,  and  preventive  justice 
therefore  not  only  is  better  than  that  which  is 
punitory  or  retributive,  but  is  the  ultimate  ob- 
lectof  all  human  law;  and  as  courts  of  mere 
law, — though  anciently  they  used,  to  a  very 


limited  extent,  some  imperfect  legal  remedies 
called  brevia  anticipantia,  for  staying  impend 
ing  wrongs— would  not,  to  any  general  or  very 
useful  extent,  interpose  for  preventing  injury 
or  loss- -courts  of  equity  have  assumed  juris 
diction  for  that  purpose  in  cases  in  which 
there  is  danger  of  a  loss  that  cannot  be  fully 
and  certainly  repaired  by  an  ordinary  legal 
remedy,  and  which  are  therefore  all  fit  sub 
jects  of  an  anticipating  equitable  cognizance 
upon  bills  quia  timet,  so  called  because  the 
complainant  fears  some  irremedial  damage, 
which  therefore  ought  to  be  prevented.  Thus 
a  court  of  equity  will  compel  the  surrender  and 
cancellation  of  a  forged  or  satisfied  obligation 
— because  otherwise  an  unjust  use  might  ba 
made  of  it  after  the  death  of  the  apparent 
obligor,  or  a  loss  of  his  proof;  and,  for  the  like 
reason,  a  court  of  equity  will  enjoin  a  tres 
pass  whenever  the  damage  would  be  irrepara 
ble,  or  the  remedy  in  a  court  of  law  inadequate 
— and  will,  on  the  same  ground,  enjoin  waste, 
or  the  sale  of  a  copy  right,  or  the  abduction  or 
destruction  of  property  of  a  peculiar  value  to 
the  owner;  in  which  cases  a  jury  could  not  ful 
ly  estimate  the  damage  sustained  by  the  in- 


ipprehended  wrong  should 
hich,  there  is  no  adequate 


jured  party,  if  the 
be  done — and  in  w 

remedy  in  a  court  of  technical  law:  and  thus  al 
so  a  person  who  owes  a  debt,  demanded  by  sev 
eral  independent  and  antagonist  claimant*, 
strangers  in  law  to  each  other,  may,  by  bill  in 
equity,  compel  the  claimants  to  interplead 
so  as  to  secure  himself  against  the  danger  of 
being  forced  to  pay  the  same  debt  more  than 
once,  which,  without  the  aid  of  a  court  of 
equity,  might  be  the  case,  as  judgment  in  faro 
of  one  stranger  could  not  be  pleaded  in  bar  of 
a  suit  by  another  for  the  same  demand. 

These  few  illustrations  are  sufficient  to  show 
the  nature  and  value  of  the  preventive  juris 
diction  of  courts  of  equity. 

The  remedial  power  of  equity  is  either  ex 
clusive,  concurrent,  or  auxiliary. 

1st.  The  jurisdiction  of  a  court  of  equity  is 
exclusive,  when  inforo  conscientia,  or  accord 
ing  to  universal  law,  there  is  a  right  which 
(except  in  a  few  peculiar  cases)  is  not  incon 
sistent  with  either  the  prohibitions  or  policy 
of  the  local  positive  law  which,  being  silent 
respecting  such  a  right,  or  not  clearly  recog 
nizing  it,  affords  no  remedy  for  enforcing  it. 
This  branch  of  jurisdiction  may  be  illustrated 
by  express  trusts,  which,  being  the  creatures 
of  equity,  and  neither  recognized  nor  prohib 
ited  by  the  strict  common  law,  will  be  en 
forced  by  a  court  of  equity  only.  In  such 
cases  of  trust,  and  in  many  other  cases  de 
pending  on  the  same  principle,  it  is  said  that 
there  is  an  equitable,  but  no  legal  right;  yet 
this  distinction  is  not  essential,  but  modal  on 
ly;  for,  in  the  substantial  and  ultimate  sense, 
equity  is  law,  and  that  which  is  equitable  is, 
and  of  course  must  be,  sanctioned  by  the  com 
mon  law,  as  now  understood,  though,  in  itsor- 

in,  equity  was  an  arbitrary  interpolation  by 

ie  ecclesiastical  chancellors  of  England  at 

first  and  for  a  long  time  resisted,  and  finally 

acquiesced  in  by  those  organs  of  public  opin- 


HISTORY  AND  NATURE  OF  EQUITY. 


211 


ion  and  authority  by  whom  the  common  law 
was  created,  improved,  and  expounded.  Like 
every  other  element  of  the  common  law,  equity 
has  gradually  and  imperceptibly  grown  and 
expanded  into  a  broad,  deep,  and  refreshing 
stream,  whose  sources,  being  small,  various 
and  distant,  are  almost  as  obscure  and  legen 
dary  as  those  of  the  Nile.  And  the  characteris 
tic  distinction  now  recognized  between  equity 
und  other  law  is,  that  the  one  is  common  law, 
first  introduced  and  adopted  by  chancellors, 
and  administered  by  tribunals  called  courts  of 
equity,  and  according  to  the  liberal  principles 
and  flexible  modes  of  civil  law,  and  the  other, 
modified  and  improved  also  by  judicial  legis 
lation,  is  administered  by  other  courte  denom 
inated  courts  of  law,  and  according  to  the 
inflexible  forms  of  the  more  technical  common 
law.  Thus,  though  once  there  was  no  such 
available  right  as  the  equity  of  redemption, 
which  was  first  established  by  courts  of  equi 
ty,  and  though  also  that  right,  however  un 
doubted  now,  is  called  equitable  and  not  le 
gal,  nevertheless  it  is  recognized  and  upheld 
by  the  modern  common  law;  otherwise  it  could 
not  be  enforced  by  any  judicial  authority. 
But  the  remedy  being  still,  as  at  first,  in  a 
court  of  equity  only,  the  right  itself,  though 
sustained  by  law,  is  called  equitable,  in  contra 
distinction  to  that  class  of  rights  which,  being 
enforcible  according  to  the  modes  peculiar  to 
the  common  law,  are  therefore  distinguished 
as  legal.  And  thus  also  the  modern  right  to  a 
specific  execution  of  a  contract — having  been 
first  recognized  by  courts  of  equity  and  being 
enforced  only  rby  bill  in  chancery — is  called 
equitable  merely — but  certainly,  in  the  com 
prehensive  and  more  effectual  sense,  it  is  a  le 
gal  right — that  is — a  right  sanctioned  and  up 
held  by  the  common  law,  as  now  existing  and 
understood. 

In  all  such  cases  of  right  recognized  by  the 
common  law,  but  not  enforced  or  protected  ac 
cording  to  its  peculiar  forms  of  proceeding  in 
courts  of  strict  and  technical  law,  a  court  of 
equity  has  yet,  as  at  first,  exclusive  jurisdic 
tion. 

2nd.  In  some  classes  of  cases  in  which  a 
right  was  first  recognized  by  courts  of  equity, 
and  was  enforcible  in  no  other  forum,  the  com 
mon  law  courts,  becoming  more  liberal  and 
enlightenod  than  they  once  were,  and  follow 
ing  the  example  of  courts  of  equity,  have 
adapted  their  remedies  to  the  cases,  and  now 
exercise  a  concurrent  cognizance  over  them. 
Thus,  though  anciently  a  court  of  law  would 
not  sustain  an  action  011  a  lost  bond,  because 
the  forms  of  pleading  required  profert  which 
could  not  be  made,  and  therefore,  courts  of 
equity  assumed  and  once  exercised  an  exclu 
sive  jurisdiction  to  give  relief  to  the  obligee, 
now  an  action  of  law  may  be  also  maintained 
— aiid,  therefore,  as  the  assumption  of  juris 
diction  by  a  court  of  law  will  not  oust  the  pre- 
existent  jurisdiction  of  a  court  of  equity,  the 
case  of  a  lost  bond  is  now  one  of  concurrent 
cognizance  by  courts  of  law  and  courts  of 
equity;  in  either  of  which  the  obligee  may 
eUct  to  8ue— but,  haying  had  a  final  decision 


in  one  of  them,  he  cannot  sue  again  in  the  oth 
er  for  the  same  tause. 

But  there  is  another  class  of  cases  in  which, 
though  the  common  law  never  withheld  its 
peculiar  remedies,  yet,  as  they  were  not  always 
adequate  or  effectual,  courts  of  equity  assumed 
a  con  current  jurisdiction  for  the  purpose  of  ef 
fectuating  the  true  object  and  spirit  of  the  law, 
which  the  common  law  forms  could  not  always 
do.  Thus,  as  fraud,  from  its  very  character, 
may  escape  detection  unless  the  injured  party 
can  have  the  benefit  of  a  discovery  from  the 
fradulent  party  upon  oath,  and  as  moreover  a 
rescission  of  a  fraudulent  contract,  and  a  con 
sequential  restitution  may  be  important  to 
justice,  and  the  common  law  forms  are  not 
adapted  to  such  an  end — therefore  courts  of 
equity  assumed  and  now  possess,  concurrently 
with  courts  of  law,  jurisdiction  in  most  cases 
of  fraud.  So,  too,  in  a  case  of  mutual  ac 
counts,  difficult  to  prove  without  a  discovery 
on  oath  by  the  parties  themselves,  and  in 
which  also  there  is  an  implied  confidence  or 
trust,  courts  of  equity  have  assumed  and  now 
exercise  a  concurrent  jurisdiction,  because  the 
legal  remedy  is  not  perfectly  adequate. 

3rd.  Sometimes  a  court  of  law,  restricted  by 
its  forms,  eannot  effect  fully  or  certainly  the 
end  of  its  own  exclusive  cognizance  of  an  ac 
tion  pending  before  it — aad  to  supply  such  a 
defect  in  the  administration  of  justice  by  such 
a  tribunal,  a  court  of  equity  may,  so  far  as  may 
be  necessary  and  consistent  with  the  principles 
of  law,  interpose  in  aid  of  the  law  court,  and, 
by  exerting  its  peculiar  and  extraordinary 
powers  in  effectual  modes,  give  efficacy  to  the 
law. 

Thus,  when  property  involved  in  litigation, 
in  a  common  law  action,  is  in  danger  of  de 
struction  or  abduction  beyond  the  jurisdiction 
of  the  court,  a  couit  of  equity  may,  en  a  bill 
containing  appropriate  allegations,  enjoin  the 
removal  or  destruction  of  it — and  thus  also  a 
court  of  equity  may  compel  a  party  to  an  ac 
tion  at  law  to  make  discovery  of  facts  material 
to  the  issue,  and  to  be  used  as  evidence  on  the 
trial  of  it — and,  after  a  judgment,  may  compel 
a  discovery  of  property  subject  to  execution,  or 
remove  incumbrances  and  extinguish  fraudu 
lent  liens,  in  subservience  to  the  common  law 
remedy  by  execution;  but  a  court  of  equity 
will  not  interfere  in  these  latter  cases,  unless 
the  complaining  party  will  show  that  he  had 
tried  ineffectually  &Jieri  facias,  and  thus  show, 
prima  facie,  that  the  ordinary  legal  remedy  is 
insufficient — nor,  as  no  court  can  subject  that 
to  execution  which  the  law  has  exempted,  can 
a  court  of  equity,  in  aiding  a  common  law 
court  in  enforcing  its  judgment,  compel  a  dis 
covery,  or  decree  the  subjection  to  execution 
of  property  not  liable  to  levy  and  sale,  accord* 
ing  to  common  or  statute  law;  a  right  to  dis 
covery  alone  gives  jurisdiction;  and  upon  dis 
covery  a  court  of  equity  can  only  compel  the 
production  of  the  property  so  as  to  be  levied 
on;  and  can  thus  only  aid  the  common  law 
Judge  to  do  that  which  he  would  have  a  right 
to  do  if  his  oflicer  could,  without  the  aid  of  a 


INTRODUCTORY  ADDRESS  ON  THE 


court  of  equity,  find  and  seize  property  liable 
to  execution. 

As  the  jurisdiction  of  a  court  of  equity,  as 
now  established  and  denned,  arises  chiefly 
from  the  defectiveness  or  unsuitableness  of  the 
prescribed  remedies  in  a  court  of  law — is  lim 
ited  to  the  end  of  effectuating  the  true  spirit 
and  design  of  the  law — and  cannot  be  extend 
ed  beyond  what  may  be  comprehended  within 
the  genius,  policy,,  and  aim  of  the  law — it  may 
be  tested  by  three  general  facts.  1st.  If,  ac 
cording  to  universal  law,  not  inconsistent  with 
the  positive  local  law,  there  is  a  right  but  no 
remedy  in  a  court  of  law,  a  court  of  equity  may 
take  cognizance  of  the  case,  and  has,  of  course, 
exclusive  jurisdiction.  2nd.  If  there  be  both  a 
right  and  a  legal  remedy,  or,  in  other  words, 
a  legal  right  in  a  particular  class  of  cases,  but 
the  remedy  in  a  court  of  law  be  doubtful,  or 
difficult,  or  inadequate,  a  court  of  equity  has 
concurrent  jurisdiction.  3rd.  When,  in  a  par 
ticular  class  of  cases,  the  legal  remedy  perverts 
the  end  of  remedial  justice — as,  for  example, 
when  judgments  were  rendered  and  enforced 
for  the  penalty,  instead  of  the  sum  really  due 
according  to  the  spirit  of  a  penal  bond — a 
court  of  equity  may  interpose,  and  by  granting 
appropriate  relief,  fulfill  the  object  and  inten 
tion  of  the  law,  and  prevent  an  abuse  of  a  per 
verted  legal  procedure. 

The  only  objects  of  a  court  of  equity  are  re- 
ducable  to  this  three-fold  classification. 

Thus  the  modal  difference  between  equity 
and  law,  and  the  character  of  equitable  juris 
diction,  and  the  objects  or  tests  of  that  juris 
diction,  being  each  distributable  into  three 
classes,  we  have,  not  only  the  mystic  multiple 
3,  but  the  classic  number  9 — and  by  adding 
the  subjects  of  jurisdiction,  equity  presents,  on 
its  front,  the  sacred  number  12;  for  the  sub 
jects  of  equitable  jurisdiction  may  also  be  com 
prehended  in  three  classes — that  is,  Fraud, 
Accident  and  Trust — each  understood  accord 
ing  to  a  liberal  and  comprehensive  import  pe 
culiar  to  equity,  which  considers  fraud  as  actu 
al  or  constructive — accident  as  any  circum 
stance  (excepting  fraud  or  trust)  which  disa 
bles  a  party,  in  a  class  of  cases,  from  obtaining 
justice  by  the  ordinary  legal  remedies — and 
Trust  as  expiess  or  implied,  and  as,  therefore, 
embracing  cases  in  which  one  party  holds  a 
right  for  another,  or  to  which  another  has  an 
equitable  claim  derived  from  contract,  result 
ing  from  some  voluntary  act,  or  implied  by 
law. 

The  foregoing  outline  exhibits  a  very  gener 
al  and  comprehensive  map  of  the  history  and 
elements  of  that  branch  of  jurisprudence  de 
nominated  equity — and  the  very  fact  that  it  is 
jurisprudential  shows  that  it  is  an  established 
and  defined  system  of  principles  as  authorita 
tive  and  inviolable  as  the  law  of  the  land. 
Being  engrafted  on  the  common  law,  there 
may  oe  no  good  reason  why,  like  other  depart 
ments  of  jurisprudence,  equity  should  not  now 
be  administered  by  all  courts  of  law.  "A  court 
of  Equity"  proceeding  without  form,  and  de 
ciding  according  to  one  set  of  common  law 
principles,  and  "a  court  of  Law"  restricted  to 


prescribed  forms,  and  deciding  according  to 
other  principles  of  the  same  code,  in  the  same 
country,  and  with  an  essentially  different  ef 
fect,  exhibit  a  singular  and  rather  vexatious 
anomaly.  In  Louisiana,  where  the  civil,  and 
not  the  common  law,  prevails,  there  is,  of 
course,  no  such  distinction  as  that  between  law 
and  equity — and  in  Pennsylvania,  where 
there  arc  no  courts  of  equity,  justice  is  admin 
istered  by  the  same  court,  according  to  both 
equity  and  law.  And  were  this  the  case  uni 
versally,  the  almost  incomprehensible  distinc 
tion  between  Law  and  Equity  would  not  exist, 
but  American  jurisprudence  would  be  under 
stood  to  be  a  homogeneous  system,  operating 
equally  aad  alike  in  every  forum. 

However  arbitrary  and  unauthorized  may 
have  been  the  first  encroachments  on  the  com 
mon  law  courts.,  and  the  modifications  of  the 
common  law  itself  by  the  clerical  chancellors 
of  England,  there  can  be  no  doubt  that  the  ul 
timate  result  of  the  innovation  is  a  very  great 
improvement  of  our  complex  civil  code,  miti 
gated  and  liberalized,  as  it  now  is,  by  princi 
ples  transplanted  into  it  from  the  civil  law  by 
ecclesiastical  authority,  and  which  would  nev 
er  perhaps  have  taken  root  in  its  uncongenial 
soil,  had  not  the  first  seeds  been  planted  and 
watered,  and  sheltered  by  the  hand  of  arbitra 
ry  and  lawless  power — and  thus,  by  clerical 
usurpation,  the  rough  and  simple  genius  of  the 
ancient  common  law  has  been  greatly  refined, 
'nvigorated  and  expanded. 

But,  as  alreadv  suggested,  there  are  even  yet 
some  anomalies  in  equity;  and  it  is  therefore 
not  universally  true,  that  a  court  of  equity  has 
no  power  to  decree  relief  contrary  to  the  doc- 
;rines  of  the  common  law.  There  are  some 
'ew  cases  in  which,  though  the  civil  and  com 
mon  law  conflict,  the  one  is  administered  in  a 
court  of  equity,  and  the  other  alone  prevails  in 
a  court  of  law.  Thus,  though  according  to  the 
common  law,  as  inflexibly  enforced  in  a  court 
of  mere  law,  a  married  woman  can  neither 
make  a  valid  contract  with  her  husband,  nor 
own  separate  property  in  her  own  independent 
right,  yet  in  a  court  of  equity,  (the  doctrines 
of  the  civil  law  there  prevailing  in  such  cases) 
such  contracts  and  such  rights  may  be  recog- 
ized  and  enforced, — thus  also,  a  bona  fide 
sale  of  a  chose  in  action,  though  void  accord- 
ng  to  the  common  law,  is  valid  and  available 
n  a  court  of  equity — and  thus  also,  certain 
trusts,  denominated  executory,  are  construed 
and  enforced  according  to  the  intention  of  the 
parties,  though  in  a  court  of  law  the  arbitrary 
ipplicaton  of  technical  rules  may  give  them  an 
essentially  different  effect, 

With  these  and  some  few  other  similar  ex 
ceptions,  equity  and  law  are  consistent,  and 
identical  in  principle  and  object,  and  differ  on 
ly  in  remedial  power  and  effect. 

But  though  the  discretion  of  a  chancellor  is, 
in  no  degree,  personal  or  arbitrary,  but  is  es- 
entially  judicial,  it  is  nevertheless  regulated 
by  some  rules  and  principles  peculiar  to  equi 
ty — the  chief  of  which  are  the  following:  1st. 
That  he  who  seeks  equity  must  first  himself 
do  equity.  2nd.  That  a  complainant  must 


HISTORY  AND  NATURE  OF  EQUITY. 


213 


come  into  court  with  clean  hands — that  is,  he 
must  have  been  fair,  just  and  punctual.  3rd. 
The  vigilant  only,  and  not  the  supine  or  neg 
ligent,  are  entitled  to  the  consideration  of  a 
court  of  equity.  4th.  A  court  of  equity  will 
not  enforce  a  penalty,  or  forfeiture,  or  an  op 
pressive  contract.  5th.  A  court  of  equity  will 
not  compel  a  bona  fide  purchaser  to  make  dis 
covery,  nor  permit  an  infant  to  be  prejudiced 
by  the  negligence  of  the  prochien  amy  or  guar 
dian  ad  libem,  nor  take  a  bill  for  confessed 
against  infancy.  6th.  For  many  practical  ends, 
equity  considers  that  as  done  which  ought  to 
be  done. 

7th.  As  already  suggested,  whenever,  ac 
cording  to  rational  law,  there  is  a  right  neither 
recognized  nor  interdicted  by  the  Saxo  -Nor 
man  common  law,  a  court  of  equity  will  up 
hold  it,  and  the  judicial  discretion  of  the  chan 
cellor  is  governed  by  the  code  of  universal  rea 
son  and  natural  right,  as  understood  and  de 
fined  by  elementary  writers  and  eminent  ju 
rists. 

8th.  Reciprocity  and  conscience  limit  the 
discretion  of  a  chancellor  in  affording  or  with 
holding  remedy  in  cases — especially  of  concur 
rent  jurisdiction — and  the  rescission  and  spe 
cific  execution  of  contracts  will  present  appo 
site  illustrations  of  this  kind  of  equitable  dis 
cretion.  Thus  a  court  of  equity  cannot  rescind 
a  contract  on  the  single  ground  of  inadequacy, 
unless  it  be  so  gross  as  per  se  to  indicate 
fraud — but  if  the  party,  who  is  most  to  be 
benefitted  by  an  unequal  executory  agree 
ment,  sue  for  a  specific  execution  of  it,  the 
court  may,  on  the  ground  of  hardship  alone, 
refuse  to  give  relief,  and  remit  the  complain 
ant  to  his  ordinary  legal  remedy,  which,  in 
such  a  case,  may  be  deemed  all  sufficient  for 
the  purposes  of  justice  contemplated  by  the 
spirit  of  the  law.  In  such  a  case  the  chancel 
lor  has  no  discretion  to  relieve  a  party  from 
the  legal  obligation  of  a  contract  which  was 
voluntary  and  uninfected  by  fraud — and  yet 
he  should  not  use  his  extraordinary  power  for 
enforcing  it,  when  the  legal  remedy  is  deemed 
sufficient  for  all  the  ends  of  full  and  perfect 
justice. 

9th.  "When  parties  are  in  equalijure,  the  de 
fendant  must  prevail — and  when  equities  are 
equal  in  quality,  the  oldest  is  preferred  accord 
ing  to  the  maxim — qui  prior  est  tcmpore  potior 
estjure. 

10th.  Equity  not  only  follows  the  law,  that 
is,  the  principles  and  analogies  of  the  law, 
but  it  has  also  adopted  rules  partly  analogical 
and  partly  peculiar  respecting  the  limitation 
of  suits  by  time. 

No  statute  of  limitation,  being,  in  terms,  ap 
plicable  to  suits  in  equity,  no  statutory  limita 
tion  can  apply  proprio  vigore  to  courts  oj 
equity.  But  those  courts  have,  upon  a  prin 
ciple  of  analogy,  voluntarily  adopted  the  stat 
ute  of  limitations  in  all  cases  of  concurrent  ju 
risdiction,  and  apply  it  in  such  cases,  except 
ing  in  those  of  fraud  and  mistake,  precisely  as 
it  applies  to  the  concurrent  remedy  in  courts 
of  law.  But  as,  in  such  cases,  it  was  adoptee 
voluntarily,  it  was  but  reasonable  that  i 


should  be  so  qualified  as  to  operate  justly  an  d 
consistently  with  the  spirit  and  end  of  all  stat 
utory  bars — and,  therefore,  in  cases  of  fraud 
and  mistake,  in  which  there  may  be  either  an 
action  at  law  or  a  suit  in  equity,  time  in  equity 
will  be  computed  only  from  the  discoveiy,  and 
not,  as  in  a  common  law  action,  from  the  per 
petration  of  the  fraud. 

Cases  of  exclusive  jurisdiction  in  equity  are, 
in  respect  to  the  application  of  the  statute, 
of  two  classes — the  first  class  embracing  those 
cases  in  which,  if  there  could  be  any  legal  rem 
edy,  it  might  be  barred  by  the  fetatute;  as,  for 
example,  a  superior  equitable  right  to  land, 
of  which  the  holder  of  the  legal  title  had  been 
adversely  possessed  for  20  years  after  the 
equity  accrued — and  the  second  class  consists 
of  all  those  cases  in  which,  had  there  been  a 
legal  remedy,  it  would  not  have  been  subject 
to  the  operation  of  the  statute;  as,  for  example, 
an  express  trust  or  a  mortgage,  unaffected  by 
either  proof  or  presumption  of  an  adverse  pot- 
session  in  fact.  In  the  first  class,  the  statute 
applies  just  as  it  would  against  a  legal  reme 
dy;  but  in  the  second  class,  it  may  operate 
and  can  only  operate  presumptively. 

When  the  only  difference  is  in  the  form  of 
remedy,  the  modern  law  will  apply  the  statute 
of  limitations  as  a  presurnptory  bar  to  a  suit 
in  equity,  whenever,  on  the  same  facts,  it 
would  be  so  applied  to  an  action  in  a  different 
forum,  if  such  were  the  remedy  for  the  same 
cause.  This  is  what  is  called  the  adoption  of 
the  statute  by  analogy. 

But  when  the  statute  would  not  have  ap 
plied  effectually  as  a  bar  to  a  legal,  it  can  nev 
er  bar  an  equitable  remedy  for  the  same  cause 
of  suit.  Ihis,  too,  is  analogy;  and  the  class  of 
cases  most  fitly  illustrative  of  this  branch  of 
the  modern  doctrine,  is  that  of  mortgages  and 
express  technical  trusts.  Let  us,  for  example, 
take  the  case  of  a  suit  to  foreclose  a  mortgage 
20  years  after  the  debt  became  due,  the  mort 
gagor  having,  all  the  time,  retained  the  posses 
sion  of  the  mortgaged  land.  If  an  action  of 
ejectment,  to  place  the  mortgagee  in  posses 
sion,  had  been  brought,  the  lapse  of  20  years 
would  not  have  operated  per  se  as  a  statutory 
bar — and  therefore  the  same  fact  cannot  so  op 
erate  in  the  suit  of  equity  to  foreclose.  But  in 
both  cases — and  in  each  equally  and  alike — 
time  would  operate  as  a  presumptive  bar.  The 
reason  why  time  would  not,  in  either  case,  op 
erate  as  a  statutory  bar,  is  because  the  posses 
sion,  in  its  origin,  was  under  the  mortgage,  and 
therefore  amicable,  and  not  adverse,  unless 
proved  to  have  become  so  in  fact — and  such 
proof  may  result  from  an  ostensible  possession 
in  fact,  in  the  character  of  owner,  and  not  as 
mortgagor,  or  from  a  presumption  of  law  aris* 
ing  from  the  lapse  of  20  years  unexplained. 
But  such  a  presumption  does  nat  operate  in 
flexibly,  like  the  statute,  which  can  be  eluded 
only  by  proving  some  exception  provided  for  in 
its  saving  clause — but  may  be  repelled  and 
defeated  by  proof  of  any  fact  inconsistent  with 
the  legal  presumption. 

The  lapse  of  20  years  is  now  the  fixed  peri- 
tod  of  prima  facie  legal  presumption,  in  all  com- 


214 


INTRODUCTORY  ADDRESS  ON  THE 


mon  law  remedies,  whatever  may  be  the  form 
of  remedy  or  mode  of  relief.  And,  therefore, 
in  an  action  on  a  bond  which  had  been  due 
more  than  20  years,  though  the  defendant, 
could  not  here  availably  plead  any  statute  of 
limitations — nevertheless,  if  he  plead  pay 
ment,  the  court  will  instruct  the  jury  that  the 
lapse  of  20  years  unexplained  is  presumptive 
proof  of  payment,  and  that,  in  the  absence  of 
any  countervailing  fact,  they  should  find  for  the 
defendant. 

But  proof  of  a  partial  payment,  or  of  ac 
knowledgment  of  the  debt,  or  of  inability  of 
defendant  to  have  paid,  within  the  20  years, 
may  be  sufficient  to  repel  the  legal  presump 
tion,  and  entitle  the  plaintiff  to  recover. 

So,  in  a  suit  to  foreclose  a  mortgage,  if  the 
mortgagor  plead  payment  or  release,  a  con 
tinued  possession  by  him  for  20  years  after 
the  debt  became  due,  would,  unexplained,  be 
presumptive  proof  of  the  payment  or  release, 
and  the  law  would  then  also  presume  that  his 
possession  had,  from  the  time  payment  was 
due,  been  in  his  own  right,  and  not  as  mort 
gagor.  But,  as  in  the  suit  on  a  bond,  proof 
by  the  mortgagee  of  any  fact  inconsistent  with 
these  Isgal  presumptions,  might  be  sufficient  to 
repel  them,  and  entitle  him  to  a  decree. 

The  same  principle  applies  to  every  suit  in 
equity,  by  a  beneficiary  against  his  trustee, 
who  had  been  in  possession  more  than  twenty 
years. 

But  in  all  such  cases,  proof  of  adverse  pos 
session  in  fact,  openly  and  ostensibly  held 
for  20  years,  would  make  the  time  operate  as  a 
statutory,  and  not  merely  as  a  presumptive 
bar,  however  tortious  such  conversion  and 
usurpation  or  breach  of  trust  may  have  been; 
for  in  every  such  case,  the  party  wronged 
had  a  known  cause  of  suit,  and  from  the  mo 
ment  of  its  accrual  the  statute  commenced 
running;  and  the  possession  being  adverse,  and 
the  only  difference  being  in  the  form  of  suit, 
analogy  applies  the  limitation  in  equity  just 
as  it  would  have  applied  as  a  bar  to  a  legal 
remedy,  had  any  such  been  appropriate. 

We  may  now  see  how  material  the  dif 
ference  is  between  a  statutory  and  a  presump 
tive  bar,  and  how  indiscriminating  and  delu 
sive  are  those  dicta  which  suggest  that,  as  be 
tween  mortgagor  and  mortgagee,  the  posses 
sion  by  either  of  these  for  20  years  operates  as 
a  statutory  bar  against  the  other. 

But  still,  as  policy  and  uniformity  require 
that  even  in  such  cases  there  should  be  some 
fixed  rule  of  prescriptive  limitation,  courts  of 
equity  have,  in  imitation  of  the  statutory  limi 
tation  to  the  right  of  entry,  adopted  2p  years  as 
the  period  of  legal  presumpiton  against  a  dor 
mant  equity;  but  which  period,  unlike  the 
period  adopted  in  cases  of  concurrent  remedy, 
does  not,  in  such  a  case,  operate  inflexibly  as 
a  statutory  bar,  but  only  presumptively;  and 
therefore  any  fact  that  will  rebut  the  arbitrary 
presumption  thus  arising  from  the  lapse  of  20 
years,  in  a  case  of  the  second  class,  exclusively- 
cognizable  by  a  court  of  equity,  will  be  suffi 
cient  to  defeat  the  prima  facie  bar  to  the  suit. 

The  foregoing  IB  a  yery  imperfect  and  gen 


eral  sketch  of  the  history  and  principles  of 
equity  in  England.  It  exists  and  is  practised 
in  most  of  the  States  of  our  Union  substan 
tially  as  in  England,  whence,  at  different 
times,  and  with  various  modifications,  it  has 
been  adopted  here.  No  court  had  chancery 
powers  in  Virginia  prior  to  1700 — nor  in  New 
York  prior  to  1701.  And  equity,  administered 
in  some  of  the  states  by  distinct  courts,  and  in 
others  by  courts,  like  that  of  the  Exchequer  in 
England,  combining  both  legal  and  equitable 
powers — was  not  matured  into  a  well  defined 
system  in  any  of  the  United  States  sooner  than 
about  the  close  of  the  last  century.  But  being 
now  established  on  principles  of  universal 
reason  and  justice,  which  are  infinite  and  eter 
nal,  and  as  expansive  as  the  destiny  of  man, 
it  will  progressively  improve  and  be  improved, 
and  assimilate  and  be  assimilated,  until  there 
shall  be  but  one  law,  in  name,  in  substance 
aud  in  practice — and  especially  in  this  our 
land  of  intellectual  independence,  where  the 
science  of  jurisprudence,  as  well  as  every 
branch  of  practical  knowledge,  may  find  its 
most  congenial  soil  and  vivifying  snn,  and 
where  the  coming  generation  may  achieve  and 
enjoy  the  noblest  of  the  many  moral  tri 
umphs  of  our  race. 

The  vexatious  delays  and  uncertainty  to 
which  litigants  are  generally  subjected  in 
courts  of  chancery,  are  not  ascribable  to  any 
defectiveness  in  the  principles  or  peculiarity 
in  the'doctrines  of  equity,  but  result  altogether 
from  the  unsuitable  organization  of  most  of 
those  courts,  and  the  loose  practice  which  gen 
erally  characterizes  them.  And  whatever  may 
be  the  excellence  of  theoretic  equity,  practical 
equity  must  ever  be  liable  to  just  criticism 
without  some  essential  improvement  in  organi 
zation.  As  long  as  our  Circuit  Courts  in  Ken 
tucky  shall  continue  to  exercise,  by  distinct 
remedies,  the  powers  of  Judges  both  of  equity 
and  strict  common  law,  suits  in  chancery  will 
be  protracted,  neglected,  defectively  prepared, 
and  of  course,  often  and  almost  always  errone 
ously  decided.  Nevertheless,  with  all  our  prac 
tical  defects,  which  could  be  easily  remedied — 
equity  is,  in  many  respects,  even  here  emi 
nently  useful;  and  we  cannot  doubt  the  day  is 
not  i'ar  distant  when,  by  proper  reform  in  its 
administration,  it  will  be  made  in  practice 
what  it  is  in  principle — the  most  just,  efficient 
and  rational  branch  of  the  common  law. 

It  will  appear  from  the  foregoing  sketch  of  a 
mere  outline  of  equity,  that  it  is  law  and  jus 
tice  in  a  peculiar  and  rational  sense — law  in  its 
spirit,  and  justice  in  its  essence — not  the  sum- 
mum  jus  of  the  letter  of  the  law,  which,  lika 
that  of  the  gospel,  killeth,  and  which  there 
fore  is  often  summa  injuria,  but  that  regulated 
and  enlightened  justice  which  is  the  basis  of 
all  happiness,  and  which,  therefore  Cicero  in 
his  offices,  declared  to  the  "omnium  domina\et 
regina  virtutum,"  "the  mistress  and  queen  of 
all  the  virtues.  And  it  will  be  seen  also  that 
equity  is  not  now  what  it  once  was  in  the  days 
of  Aristotle,  of  Papinian,  of  Grotius,  or  even 
of  Bacon— the  personal  "discretion  of  a  good 
man"  or  the  correctrix  of  that  in  which  the 


HISTORY  AND  STATURE  OP  EQUITY. 


915 


law,  in  consequence  of  its  universality,  is  de 
fective" — but  that  it  is  mere  nearly  what 
Blackstone  denned  it  to  be,  "the  soul  and  spir 
it  of  all  law/'  and  by  which  "positive  law  is 
construed,  and  rational  law  is  made."  And, 
moreover,  it  will  become  manifest  that  equity, 
as  now  practised  in  England  and  in  these 
states,  has  never  been  exactly  denned  by  any 
publicist  or  jurist,  and  is  not,  even  now,  easi 
ly  defined,  though  it  may  be  well  understood." 

It  may  be  here  also  perceived  how — through 
the  principles  of  her  civil  code,  blended  with 
the  common  law  by  courts  of  equity — fallen 
Rome  will  continue  to  maintain  by  her  reason, 
an  extensive  and  indestructible  empire  for 
countless  ages  after  the  destruction  of  all  the 
other  and  more  pretending  monuments  of  her 
republican  glory,  or  imperial  power  and  mag 
nificence. 

Nor  can  it  escape  observation  that — with 
the  exception  only  of  the  Christian  religion — 
equity  is  the  best  friend  that  woman  has,  or 
ever  had.  It  does  not,  like  the  gothic  common 
law,  destroy  the  separate  legal  existence  of  the 
wife  by  merging  it  in  that  of  her  husband — 
nor  make  coverture  a  state  of  vassalage — nor, 
even  like  the  civil  law,  give  to  wives  incon 
sistent  rights  and  injurious  authority — but  it 
will,  to  a  just  and  rational  extent,  protect  mar 
ried  women  in  their  personal  identity,  and  in 


the  enjoyment  of  property  and  of  mental  inde 
pendence. 

But  we  must  not  forget  that  equity — vast 
and  useful  as  it  must  be  admitted  to  be — is 
only  one  of  the  many  streamlets  that  contri 
bute  to  the  shoreless  reservoir  of  universal 
law.  Even  equity,  and  the  more  technical  and 
ancient  common  law  combined  are,  to  the  great 
ocean  of  all  law,  but  like  our  noble  rivers, 
Mississippi  and  Missouri,  whose  commingled 
volumes — limpid  and  turbid — though  leng 
distinguishable,  are  destined  to  a  more  perfect 
union  and  identity  in  the  continued  flow  of 
one  majestic  stream  bearing  its  beneficent  con 
tributions  to  the  bosom  of  the  great  deep. 

And  thus  it  is  evident  that,  wherever  the 
Anglo-Saxon  tongue  is  spoken,  modern  Eng 
lish  equity  is  among  the  most  useful  of  the  ele 
ments  of  that  copious  system  of  civil  jurispru 
dence,  which  is  the  rule  of  civic  right  and  du 
ty — the  mother  of  all  other  arts  and  sciences — 
the  upholder  of  order  and  liberty — the  conser 
vator  of  peace — the  creator  and  preserver  of  all 
the  social  relations — the  guardian  angel  of  the 
most  endearing  charities  of  domestic  life — the 
tutelar  divinity  that  guards  infancy,  weak 
ness,  and  innocence — and  without  the  protec 
tion  of  whose  strong  panoply  this  earth  would 
be  a  wilderness,  our  whole  race  savages,  and 
our  moral  world  itself  a  cheerless,  trackless, 
hopeless  waste. 


PRELECTION. 


Lexington,  Nov.  27th,  1838. 

Sir — We,  the  undersigned,  having  been  appointed  by  the  Law  Class 
of  Transylvania  University,  a  committee  to  wait  upon  your  honor,  re 
spectfully  request  a  copy  of  your  Introductory  Lecture  for  publication, 
believing  it  to  be  a  just  and  able  eulogy  on  the  life  and  public  services 
of  the  late  Hon.  John  Boyle. 

Respectfully,  your  ob't  servants, 

WILLIAM  T.  BARBOUR, 
WM.  R.  CARRADINE, 
WM.  H.  ROBARDS, 
M.  R.  SINGLETON, 
HON.  GEORGE  ROBERTSON,  Committee* 


Lexington,  Nov.  28th,  1838. 

Gentlemen — Thanking  you  and  the  Law  Class  for  your  kind  senti 
ments,  I  commit  to  your  discretion  and  disposal  the  Introductory  Lec 
ture,  a  copy  of  which  you  have  requested  for  publication. 

Yours }  respectfully, 

G.  ROBERTSON. 
Messrs.  Barbour,  Carradine,  Robards,  Singleton. 


ADDRESS. 


It  is  the  sacred  duty  of  every  generation  to 
preserve  faithful  memorials  of  the  character 
and  conduct  of  its  distinguished  men.  The 
memory  of  the  illustrious  dead  should  nevei 
be  lost  in  the  oblivion  of  time.  Biography  is 
the  soul  of  history.  The  maxims  and  motives 
and  destinies  of  prominent  men,  as  exemplified 
from  age  to  age,  in  the  moral  drama  of  oui 
race,  constitute  the  elements  of  historic  philos 
ophy,  and  impart  to  the  annals  of  mankind 
their  only  practical  utility.  When,  and  only 
when,  illustrated  by  the  life  of  an  eminent  man 
virtue  or  vice,  knowledge  or  ignorance,  thus 
personified,  is  seen  and  felt  as  the  efficien 
lever  of  the  moral  world.  The  lives  of  con 
spicuous  men  help  to  characterise  their  day 
and  country,  and,  like  sign  boards  on  the 
high-ways  and  the  bye-ways  through  the  wil 
derness  of  human  affairs,  tell  the  bewildered 
pilgrim  where  he  is  going,  what  way  he  should 
go,  and  the  weal  or  the  woe  of  his  journey's 
end. 

Here,  with  trembling  hand,  the  gifted  Burns 
points  to  the  ruin  and  despair  which  lie  in 
ambush  on  the  broad  and  voluptuous  turnpik 
on  which  his  noble  genius  was  driven  to  des 
truction — here  sits  the  cold  bust  of  the  captive 
Napoleon,  scowling  on  the  iron  railway,  where 
the  steam-car  of  unrighteous  ambition,  explo 
ding  with  a  tremendous  crash,  shivered  all  his 
gigantic  hopes  and  projects  of  power — and 
here,  too,  stands  the  god-]  ike  statue  of  our 
Washington,  consecrating  the  straight  and 
narrow  pathway  of  virtue,  which  leads  the 
honest  man  to  everlasting  happiness,  and  the 
pure  patriot  to  immortal  renown — and  here, 
every  where,  we  see  exemplifications  of  the 
vanity  of  worldly  riches,  the  wretchedness  of 
selfish  ambition,  the  usefulness  of  industry, 
and  charity,  and  self-denial,  and  blissfullness 
of  cultivated  faculties,  and  of  moderation  in 
all  our  desires  and  enjoyments. 

The  lessons,  thus  only  to  be  usefully  taught, 
are  practical  truths  echoed  from  the  tombs  of 
buried  generations  in  the  mother  tongue  of  all 
mankind. 

Greece,  and  Rome,  and  Franco,  and  England, 
have  honored  their  dead  and  contributed  to 
the  stock  of  useful  knowledge  among  men  by 
graphic  memoirs  of  their  conspicuous  Philoso 
phers,  Heroes,  Statesmen,  and  Bards.  And 
Plutarch's  parallel  Biographies  of  Greeks  and 
Romans,  and  Johnson's  Lives  of  the  British 
Poets — scholastic  as  the  one,  and  garrulous  as 
the  other  must  be  admitted  to  be — arc  among 
the  most  valuable  of  the  repositories  of  practi 
cal  wisdom. 

But  it  is  in  our  age  of  rectified  reason  and 
28 


enlightened  liberty  that  the  lives  of  the  virtu 
ous  great  who  have  lived  and  are  buried  in  our 
own  America,  would  exhibit  the  most  attrac 
tive  models  of  the  virtues  which  made  them 
and  our  country  great,  and  which  alone  will 
ever  ennoble  and  bless  the  nations  and  coun 
tries  of  the  earth. 

The  Anglo-American  Heroes  and  Statesmen, 
from  the  Pilgrim  Band  of  Plymoth  Rock  to 
that  more  illustrious  group  signalized  in  our 
memorable  revolution,  stand  out  in  bold  relief 
on  the  column  of  history;  and  the  humbler, 
but  not  less  noble  pioneers  and  hunters  of  Ken 
tucky,  and  the  primitive  founders  of  the  great 
social  fabric  of  this  blooming  valley  of  the 
West,  have  left  behind  them  monuments  more 
enduring  than  storied  urns  or  animated  busts. 
But  the  personal  history  of  most  of  these  no 
bles  of  their  race  is  yet  told  only  by  the  tongue 
of  tradition.  And  the  story  of  the  deeds  of 
many  of  them  is,  even  now  among  ourselves, 
listened  to  as  romance. 

Our  own  favored  Commonwealth,  though 
young  in  years,  is  venerable  in  deeds.  Ken- 
.ucky  has  been  the  theater  of  marvelous 
events  and  of  distinguished  talents. 

Though  not  more  than  68  years  have  run 
since  the  first  track  of  civilization  was  made 
n  her  dark  and  bloody  wilderness,  yet  she 
lias  already  had  her  age  of  chivalry,  her  age  of 
reason  and  religion,  liberty  and  law.  She  has 
ler  battle-fields  as  memorable,  and  almost  as 
eventful  as  those  of  Marathon  or  Waterloo— 
and  she  has  had  heroes,  orators,  jurists  and 
awgivers  who  would  have  been  conspicuous 
n  any  age  or  country.  But  neither  biography 
nor  general  history  has  done  justice  to  their 
memories.  Most  of  that  class  of  them,  whose 
ives  were  peaceful  and  whose  triumphs  were 
merely  civic,  have  been  permitted  to  slumber 
under  our  feet  without  either  recorded  eulogy 
>r  biographic  memorial. 

The  memory  of  the  Nicholases,  the  Breckin- 
idges,  the  Browns,  and  the  Murrays,  the  Al 
ans  and  the  Hugheses,  the  Talbotts  and  the 
Bledsoes,  the  Daviesses  and  the  Hardins,  the 
ees  and  the  Andersons,  the  Todds,  the 
Trimbles  qnd  the  Boyles,  of  whom,  in  their 
[ay,  Kentucky  was  justly  proud,  should  not 
ongcr  remain  thus  unhonored  and  unsung. 

Influenced  by  a  strong  sense  of  personal  and 
ublic  obligation,  we  will  now  attempt  to 
ketch  a  brief  outline  of  one  of  these  our  depar- 
ed  great. 

Among  the  honored  names  of  Kentucky, 
John  Boyle,  once  Chief  Justice  of  the  State,  is 
eservedly  conspicuous.  Modest  and  unpre- 
ending,  his  sterling  merit  alone  elevated  him 


318 


A  BIOGRAPHICAL  SKETCH 


from  humble  obscurity  to  high  places  of  public 
trust  which  he  filled  without  reproach,  and  to 
a  still  more  enviable  place  in  public  confidence 
and  esteem  which  but  few  men  ever  attained, 
and  none  ever  more  deserved.  Though  his 
whole  career  was  peaceful  and  unaspiring,  his 
life,  "take  it  all  in  all,"  domestic  and  public, 
exhibits  a  beautiful  model  of  an  honest  man, 
a  just  citizen,  a  patriotic  statesman,  and  an  en 
lightened  jurist.  The  example  of  such  a  man 
is  worthy  of  imitation  by  all  men  living  or  to 
come— and  the  memorials  of  such  a  life  must 
be  interesting  to  all  good  men,  and  peculiarly 
profitable  to  the  young  who  desire  to  be  useful 
and  honored. 

John  Boyle's  genealogy  cannot  be  traced 
through  a  long  line  of  ancestry.  He  inherited 
no  ancestral  honors,  nor  fortune,  nor  memorial. 
Like  most  of  the  first  race  of  illustrious  Ken- 
tuckians,  descended  from  a  sound  but  humble 
stock,  he  was  the  carver  of  his  own  fortune, 
and  the  ennobler  of  his  own  name.  His  only 
patrimony  was  a  vigorous  constitution,  a  sound 
head,  a  pure  heart,  and  a  simple,  but  virtuous 
education. 

He  was  bom  October  28th,  1774,  in  Virginia, 
at  a  place  called  "Castle  Woods,"  on  Clinch 
River,  in  the  (then)  county  of  Bottetourt,  now 
Russell  or  Tazewell;  and  in  the  year  1779  was 
brought  to  Whitley's  Station  in  Kentucky,  by 
his  father,  who  immigrated  in  that  year  to  try  , 
his  fortune  in  the  wild  woods  of  the  west — 
and  who,  like  the  mass  of  early  adventurers, 
reared  in  the  old  school'of  provincial  simplici 
ty  and  backwoods  equality,  was  a  plain,  blunt 
man  of  independent  spirit.  The  father  first 
"settled"  in  Madison  county,  but  afterwards 
moved  to  the  county  of  Garrard,  where  he 
lived  on  a  small  estate  until  his  death. 

Of  the  early  history  of  the  son,  we  have 
heard  nothing  signal  or  peculiar.  In  his  days 
of  pupilage,  a  collegiate  education  was  not  at 
tainable  in  Kentucky.  And  those  who,  like 
him,  were  poor,  were  compelled  to  be  content 
with  such  scholastic  instruction  as  might  be 
derived  from  private  tutors  and  voluntary 
country  schools. 

Emulous  of  such  usefulness  and  fame  as  can 
be  secured  only  by  moral  and  intellectual  ex 
cellence,  he  eagerly  availed  himself  of  all  the 
means  within  his  reach  for  improving  his  mind 
and  cultivating  proper  principles  and  habits. 
After  acquiring  an  elementary  English  educa 
tion,  he  learned  the  rudiments  of  the  Greek 
and  Latin  languages  and  of  the  most  useful  of 
the  sciences,  in  Madison  county,  under  the  tu 
telage  of  the  Rev.  Samuel  Finley,  a  Presbyte 
rian  clergyman  of  exemplary  piety  and  patri 
archal  simplicity.  With  this  humble  prepa 
ration,  having  chosen  the  Law  for  his  profes 
sional  pursuit,  he  read  Blackstone's  Commen 
taries  and  a  few  other  elementary  and  practical 
books  under  the  direction  of  Thomas  T.  Davis, 
then  a  member  of  Congress,  whom  he  succee 
ded,  and  who  resided  in  the  county  of  Mercer, 
in  the  neighborhood  of  Jeremiah  Tilford,  a 
plain,  pious  and  frugal  farmer,  with  whom  the 
pupil  boarded,  and  one  of  whose  daughters, 
(luaabeth,)  a  beautiful  and  excellent  woman, 


he  married  in  1797,  about  the  commencement 
of  his  professional  career.  His  wife's  estate 
did  not  equal  in  value  $1,000,  and  his  own  pat 
rimony  was  himself  alone,  just  as  he  was. 
With  these  humble  means  he  bought  an  out- 
lot  in  Lancaster,  Garrard  county,  on  which,  in 
1798,  he  built  a  small  log  house,  with  only  two 
rooms,  in  which,  not  only  himself,  but  three 
other  gentlemen,  who  successively  followed 
him  as  a  national  representative,  and  one  of 
whom  also  succeeded  him  in  the  Chief -Justice 
ship  of  Kentucky,  began  the  sober  business  of 
conjugal  life.  There  he  lived  happily  and 
practiced  law  successfully  until  1802,  when, 
being  unanimously  called  to  the  House  of 
Representatives  of  the  United  States,  he  settled 
on  a  farm  of  125  acres,  near  Lancaster,  where 
he  continued  to  reside  until  1811,  when  he 
moved  to  a  tract  of  land  in  the  same  county,  a 
part  of  which  had  been  recently  given  to  him 
by  his  father,  and  where  he  lived,  in  cabins, 
until  1814,  when  he  bought  and  removed  to 
the  tract  in  Mercer  on  which  his  wife  had 
been  reared,  and  where  he  continued  to  reside 
until  his  death. 

Here  let  us  pause  a  moment,  and,  from  the 
eminence  to  which  the  people  spontaneously 
elevated  the  isolated  and  unambitious  Boyle,  let 
us  look  back  on  the  humble  pathway  which  led 
him  so  soon  to  the  enviable  place  lie  occupied 
in  the  affections  of  those  who  knew  him  first, 
and  best,  and  not  one  of  whom  ever  faltered  iu 
his  confidence  and  esteem. 

Without  the  adventitious  influence  of  wealth, 
or  family,  or  accident,  and  without  any  of  the 
artifices  of  vulgar  ambition  or  selfish  preten 
sion,  he  was,  as  soon  as  known,  honored  with 
the  universal  homage  of  that  kind  of  cordial 
respect  which  nothing  but  intrinsic  and  unob 
trusive  merit  can  ever  command,  and  which 
alone  can  be  either  gratifying  or  honorable  to 
a  man  of  good  taste  and  elevated  mind.  It 
was  his  general  intelligence,  his  undoubted 
robity,  his  child-like  candor,  his  scrupulous 
onor  and  imdeviating  rectitude,  which  alone 
extorted — what  neither  money,  nor  office,  nor 
flattery,  nor  duplicity,  can  ever  secure — the 
sincere  esteem  of  all  who  knew  him.  And  so 
conspicuous  and  attractive  was  his  unostenta 
tious  worth,  that,  though  he  rather  shunned 
than  courted  official  discinction,  it  sought  him 
and  called  him  from  his  native  obscurity  and 
the  cherished  privacy  of  domestic  enjoyment. 
His  education  was  unsophisticated  and  prac 
tical.  He  learned  things  instead  of  names, 
principles  of  moral  truth  and  inductive  philos- 
phy  instead  of  theoretic  systems  and  scholas 
tic  dogmatisms.  His  country  education  pre 
served  and  fortified  all  his  useful  faculties, 
physical  and  moral — his  taste  was  never  per 
verted  by  false  fashion — his  purity  was  never 
contaminated  by  the  examples  or  seduced  by 
the  temptations  of  demoralizing  associations. 
Blessed  with  a  robust  constitution,  his  habitu 
al  industry  and  "temperance  in  all  things'" 
preserved  his  organic  soundness  and  promoted 
the  health  and  vigor  of  his  body  and  his  mind. 
What  he  knew  to  be  right  he  always  practised 
,— and  that  which  he  filt  to  be  wrong  he  inva- 


OF  THE  HOK.  JOHN  BOYLE. 


riably  avoided.  In  his  pursuit  after  kowledge 
his  sole  objects  were  truth  and  utility.  In  his 
social  intercourse  he  was  chaste,  modest  and 
kind — and  all  his  conduct,  public  and  private, 
Avas  characterised  by  scrupulous  fidelity,  im 
partial  justice,  and  an  enlightened  and  liberal 
spirit  of  philanthropy  and  beneficence.  Self- 
poised  he  resolutely  determined  that  his  des 
tiny  should  depend  on  his  own  conduct.  Ob 
servant,  studious,  and  discriminating,  what 
ever  he  acquired  from  books,  or  from  men,  he 
made  his  own  by  appropriate  cogitation  or 
manipulation.  And  thus,  as  far  as  he  went  in 
the  career  of  knowledge,  he  reached,  as  if  per 
saltern,  the  end  of  all  learning — practical  truth 
and  utility. 

Panoplied  in  such  principles  and  habitudes, 
his  merit  could  not  be  concealed.  In  a  just 
and  discerning  community,  such  a  man  is  as 
sure  of  honorable  fame  as  substance  is  of  shad 
ow  in  the  sun-light  of  day.  And  have  We  not 
here  a  striking  illustration  of  the  importance 
of  right  education  and  self-dependence?  Prop 
er  education  is  that  kind  of  instruction  and 
discipline,  moral,  mental  and  physical,  which 
will  teach  the  boy  what  he  should  do  and 
what  he  should  shun,  when  he  becomes  a  man, 
and  prepare  him  to  do  well  whatever  an  intel 
ligent  and  upright  man  should  do  in  all  the 
relations  of  social  and  civil  life;  and  any  sys 
tem  of  education  which  accomplishes  either 
more  or  less  than  this,  is  so  far  imperfect,  or 
preposterous  and  pernicious.  But,  after  all,  the 
best  schoolmasters  are  a  mediocrity  of  fortune, 
and  a  country  society,  virtuous  but  not  puritan 
ical,  religious  but  notfanatical,  indpendent  but 
not  rich,  frugal  but  not  penurious,  free  but  not 
licentious — a  society  which  exemplifies  the 
harmony  ruid  value  of  industry  and  morality, 
republican  simplicity  and  practical  equality. 

Reared  in  such  a  school,  and  practically  in 
structed  in  the  elements  of  useful  knowledge, 
a  man  of  good  capacity,  who  enters  on  the 
business  of  life  with  no  other  fortune  than  his 
ovii  faculties,  and  no  other  hope  than  his  own 
honest  efforts,  can  scarcely  fail  to  become  both 
useful  and  great.  But  he  who  embarks  desti 
tute  of  such  tutilage  or  freighted  with  heredi 
tary  honor  or  wealth,  is  in  imminent  danger  of 
being  wrecked  in  his  voyage.  Fortune  and 
illustrious  lineage  are,  but  too  often,  curses 
rather  than  blessings.  The  industry  and  self- 
denial,  which  are  indispensable  to  true  moral 
and  intellectual  greatness,  have  been  but  rare 
ly  practised  without  the  lash  of  poverty  or  the 
incentive  of  total  self-independence.  And  the 
son  who  cannot  make  fortune  and  fame  for  him 
self,  will  not  be  apt  to  increase  or  even  to  keep 
inherited  wealth  and  reputation,  however  boun 
teously  they  may  have  been  showered  on  his 
early  manhood.  Parents  should,  therefore,  be 
solicitous  to  educate  their  children  in  such  a 


bered  by  patrimonial  trash,  started  the  journey 
of  life  alone  and  on  foot—his  own  mind  hie 
only  guide,  his  own  conduct  his  only  hope; 
and  though  there  was  nothing  strikingly  im 
posing  in  the  character  of  his  mind  or  in  his 
manners,  but  few  m«n  on  earth  ever  reached 
his  earthly  goal  of  honor  by  &  straighter  or 
smoother  path.  During  his  short  professional 
career,  he  was  eminently  just  ana  faithful  to 
his  clients;  and  though  his  elocution  was 
neither  copious  nor  graceful,  he  was  extensively 
patronized.  For  this  success  he  was  indebted 
altogether  to  his  intelligence,  integrity  and 
fidelity.  But  with  much  business — his  fees 
being  low,  and  not  well  collected — he  made 
but  little  money.  He  acquired,  however,  that 
which  was  far  more  valuable — the  reputation 
of  an  enlightened  and  "an  honest  lawyer." 

Translated  from  the  forensic  to  the  political 
theater,  he  declined  altogether  the  practice  of 
the  law.  In  the  national  legislature  he  acted 
with  the  Jeffersonian  and  then  dominant  party. 
And  though  not  a  speaking  member,  he  vras 
vigilant,  active  and  useful,  and  his  disinter 
ested  patriotism,  amiable  modesty,  unclouded 
intelligence  and  habitual  candor,  soon  exalted 
him  to  an  enviable  reputation.  If  there  be  any 
valid  objection  to  his  political  course,  it  is  this 
only— that,  agreeing,  as  he  generally  did,  with 
a  party  armed  with  power  and  flushed  with  a 
recent  and  great  victory  in^the  downfall  of  an 
opposing  and  previously  governing  party,  he 
was  more  of  a  partizan  than  perfect  justice  or 
abstract  truth  would  altogether  have  approved. 
But  this  aberration,  which  could  not  have  been 
easily  avoided,  was,  in  his  case,  as  venial  and 
slight  as  it  ever  was  in  the  case  of  any  other 
man  who  ever  lived.  He  did  not  "give  up  to 
party  what  was  meant  for  mankind" — nor  was 
he  intolerant,  prescriptive  or  factious,  or  ever 
influenced  by  any  selfish  or  sinister  motive. 
And  if,  when  he  co-operated  with  his  political 
friends,  he  ever  erred,  the  ardor  of  his  patriot 
ism  and  the  unsuspecting  confidence  of  his 
own  honest  mind  induced  him  to  believe,  at 
the  time,  that  his  party  was  right.  But  he 
was  never  charged  with  insincerity  or  obliquity 
of  motive.  And  his  character  was  always 
blameless  in  the  view  even  of  those  who  did 
not  concur  with  him  in  opinion. 

If  as  much  could  be  as  truly  said  of  more 
modern  partizans,  our  country  would  be  blessed 
with  more  honor  and  tranquility  than  can  be 
admitted  to  prevail  in  this  our  day  of  compa 
rative  intolerance  and  intellectual  prostitu 
tion. 

Having  no  taste  for  political  life,  and  finding 
moreover,  that  the  duties  of  a  representative  in 
Congress  were  incompatible  with  his  domestic 
obligations,  he  had  soon  resolved  to  retire  from 
the  theater  of  public  affairs  and  devote  himself 
to  his  family  and  his  legal  profession.  But 


manner  as   to   mako  them  healthful  in  body  I  such  a  man  as  John  Boyle  cannot  always  dis- 

1   pose  of  himself  according  to  his  own  personal 
wishes.     His  constituents  re-elected  him  twice 


and  mind,  and  to  enable  them  to  be  useful  and 
honorable,  without  extraneous  wealth,  which 
is  but  too  apt  to  paralyze  or  ensnare  the  victims 
of  perverted  bounty,  and  indiscriminating  af. 
fection. 

John  Boyle,  rightly  reared  a»d  unincum 


without  competition.  And  we  have  heard  that 
Mr.  Jefferson,  who  j  u  stly  appreciated  his  worth , 
offered  him  more  than  one  federal  appointment, 
which  either  his  diffidence  or  his  romantic  at- 


220 


A  BIOGRAPHICAL  SKETCH 


tachment  to  his  family  and  homo  induced  him 
to  decline.  But  in  March,  1809,  Mr.  Madison, 
among  his  first  official  acts  as  President,  ap 
pointed  him,  without  his  solicitation,  the  first 
Governor  of  Illinois.  This  being,  as  it  cer 
tainly  was,  prospectively  one  of  the  most  im 
portant  and  lucrative  of  all  federal  appoint 
ments,  and  his  domestic  duties  having  become 
still  more  and  more  importunate,  he  was  in 
clined  to  accept  the  provincial  Governorship — 
and  did  accept  it  provisionally.  But,  on  his  re 
turn  to  his  family,  he  was  invited  to  elect  be 
tween  the  territorial  office  and  that  of  a  Circuit 
Judge,  and  also  of ,  an  Appellate  Judge  of 
Kentucky,  both  of  which  latter  appointments 
had  been  tendered  him  in  anticipation  of  his 
retirement  from  Congress.  And  though  the 
salary  of  Appellate  Judge  was  then  only 
$1000,  and  the  duties  of  the  office  were  pecu 
liarly  onerous,  yet,  his  local  and  personal  at- 
tatchments  and  associations  prevailing  over 


Judge  should  never  give  an  opinion  until  he 
had  explored  all  the  consequences,  direct  and 
collateral,  and  had  a  well  considered  opinion 
to  give.  His  associates  on  the  bench,  and  the 
members  of  his  bar  always  felt  for  him  perfect 
respect,  and  manifested  towards  him  a  becom 
ing  deference.  His  reported  opinions  are 
equal,  in  most,  if  not  in  all  respects,  with 
those  of  any  other  Judge,  ancient  or  modern, 
and  will  associate  his  name,  in  after  times, 
with  those  of  the  Hales  and  the  Eldons  of 
England,  and  the  Kents  and  Marshalls  of 
America. 

In  politics,  also,  he  was  enlightened  and 
orthodox.  In  his  more  matured  and  tranquil 
season  of  life,  he  repudiated  some  of  the  theo 
ries  of  his  earlier  and  more  impassioned  days 
— and  in  American  politics,  he  was,  long  be 
fore  his  death,  neither  a  centralist,  nor  a  con- 
federationist — a  democrat  nor  an  aristocrat — 
but  was  an  honest  and  liberel  republican,  na- 


his  ambition  and  pecuniary  interest,  he  took  tional  as   far  as  the  common  interests  of  the 


his  seat  on  the  Appellate  bench  of  his 
State  on  the  4th  of  April,  1809— and  Ninian 
Edwards,  the  then  Chief  Justice  of  Kentucky, 
solicited  and  obtained  the  abdicated  procon- 
aulship  of  Illinois. 

The  election  thus  made  by  Boyle  affords  an  im 
pressive  illustration  of  the  cast  of  his  mind  arid 
his  affections.  Illinois  was  obviously  the  bet 
ter  theater  for  an  ambitious  or  avaricious  man. 
But  he  was  neither  ambitious  nor  avaricious. 
His  own  domestic  happiness  and  social  sympa 
thies  prevailed  over  every  other  considsration. 
And  at  last,  perhaps  his  decision  was  as  pru 
dent,  as  it  was  patriotic.  His  judicial  career, 
for  which  he  was  peculiarly  fitted,  forms  an 
interesting  epoch  in  the  jurisprudence  of  the 
west — and  he  could  not  have  left  to  his  chil 
dren  a  better  legacy  than  the  faine  he  acquired 
as  Chief  Justice  of  his  own  beloved  Common 
wealth — to  which  high  and  responsible  office 
he  was  promoted  on  the  3d  of  April,  1810, 
and  which  he  continued  to  hold  until  the  8th 
of  November,  1826. 

When  first  called  to  the  bench  of  justice  his 
legal  learning  could  not  have  been  either  ex 
tensive,  ready,  or  very  exact.  But  he  pos 
sessed  all  the  elements  of  a  first  rate  judge,  as 
time  and  trial  demonstrated.  He  soon  became 
a  distinguished  jurist.  His  legal  knowledge, 
though  never  remarkably  copious,  was  clear 
and  scientific.  Many  men  had  read  more  books, 
but  none  understood  better  what  they  read. 
His  law  library  contained  only  the  most  com 
prehensive  and  approved  volumes — and  those 
he  studied  carefully,  could  use  readily,  and  un 
derstood  thoroughly.  With  the  elements  of  the 
common  law  and  the  philosophy  of  pleading, 
he  appeared  to  be  perfectly  acquainted. 

His  miscellaneous  reading  was  extensive — 
and  in  mental  and  moral  philosophy  and  po 
lite  litrature,  his  attainments  were  eminent. 
His  colloquial  style  was  plain  and  unpedantic, 
but  fluent  chaste  and  perspicuous;  and  his  style 
of  writing  was  pure,  graceful  and  luminous. 

Though  his  perceptions  were  clear  and  quick, 
yet  he  was  habitually  cautious  in  forming  his 
judicial  opinions.  It  was  his  maxim  that  a 


people  of  the  United  States  were  concerned, 
and  local,  so  far  as  the  municipal  concerns  of 
each  State  were  separately  and  exclusively  in 
volved.  He  was  a  friend  to  that  kind  of  liber 
ty  and  equality  which  are  regulated  by  intelli 
gence  and  controlled  and  preserved  by  law — 
and  was  a  foe  to  demagoguery,  ignorance,  li 
centiousness,  and  jacobinism. 

But  it  was  as  a  jurist  that  he  was  most  dis 
tinguished.  And  as  an  illustration  of  his  in 
fluence,  as  well  as  rare  modesty  and  public 
spirit  on  the  bench,  we  may  notice  the  signal 
fact  that,  in  his  whole  judicial  career,  during 
a  portion  of  which,  about  SOO  causes  were 
annually  decided,  he  never,  but  once,  dissen 
ted  from  the  opinion  of  the  court,  and  then  he 
magnanimously  abstained  from  intimating 
any  reason  against  the  judgment  of  the  ma 
jority,  lest  he  might  impair  the  authority  of 
the  decision  which,  until  changed  by  the  court, 
should,  as  he  thought,  be  deemed  the  law  of 
the  laud. 

The  only  objection  to  him  as  a  Judge,  whicli 
we  ever  heard  suggested,  was  that,  in  the  opin 
ion  of  some  jurists,  he  adhered  rather  more 
rigdly  to  the  ancient  precedents  and  technical 
ities  of  the  common  law  than  was  perfectly 
consistent  with  its  progressive  improvements 
and  its  inadaptableness,  in  some  respecta,  to 
the  genius  of  American  institutions.  But  this 
criticism,  though  it  may,  in  some  slight  degree, 
have  been  just,  should  not  detract  much  from 
his  superior  merit  as  an  Appellate  Judge. 
So  far  as  ho  misapplied  any  doctrine  of  the 
British  common  law  to  cases  in  this  country 
to  which  the  reason  for  it  in  England  does 
not  apply  here,  he  certainly  erred.  But  such 
a  misapplication  was  rarely,  if  ever,  made  by 
him  .And  for  not  extending  or  improving  the 
American  common  law,  he  was  not  justly  ob 
noxious  to  censure.  It  is  safer  and  more  pru 
dent  to  err  sometimes  in  the  recognition  of  an 
established  doctrine  of  the  law,  than  to  make 


innovation 
the   authoritv 


by  deciding  upon  principle  a 
itv   of  judicial    precedents. 


gainst. 
And 


though  one  of  the  most  valuable  qualities  of 
,the  common  law  is  its  peculiar  maDiableness, 


OF  THE  HO-NT.  JOHN  BOYLE, 


221 


in  consequence  of  which,  it  has  been  greatly 
improved  from  age  to  age  by  judicial  modifi 
cations  corresponding  with  its  reason  and  the 
spirit  of  the  times,  yet  the  Judge  who  leaves  it 
as  he  finds  it  is  at  least  a  safe  depository. 
Such  a  Judge  was  John  Boyle.  He  was 
neither  a  Mansfield  nor  a  Hardwicke — he  was 
more  like  Hale  and  Kenyon.  If  he  did  not 
improve,  he  did  not  mar  or  unhinge  the  law. 
But,  not  long  before  he  commenced  his  judi 
cial  career,  the  Legislature  of  Kentucky,  as  if 
to  seal  up  the  common  law  as  it  was  under 
stood  on  the  4th  of  July,  1776,  and  to  hide  it 
from  the  light  of  more  modern  reason  and  im 
provement  shed  on  it  in  the  land  of  its  birth 
— interdicted  the  use — in  any  court  in  this 
State — of  any  post  revolutionary  decision  by  a 
British  court.  And  that  proscriptive  enact 
ment  was  scrupulously  observed  by  Judge 
Boyle.  So  far  as  it  was  observed — howeverj  actual 
injuriously — the  fault  was  not  so  much  his  as 
that  of  the  legislative  department.  But  it  is 
impossible,  altogether,  to  proscribe  enlight 
ened  reason,  whether  foreign  or  domestic,  an 
cient  or  modern,  British  or  American.  And 
now,  Judges  more  bold,  but  perhaps  less 
prudent,  virtually  disregard  the  legislative  in 
terdict,  by  consulting  British  decisions  since 
'76 — not  exactly  as  authorities,  but  as  argu 
ments  to  prove  what  the  common  law  now  is, 
and  ever  should  have  been  held  to  be,  here  as 
well  as  in  England. 

No  man,  however,  of  his  day,  contributed 
more  than  Judge  Boyle  contributed  to  estab 
lish  the  proper  authoritativeness  of  judicial 
decisions,  to  elevate  the  true  dignity,  and  to 
inspire  confidence  in  the  purity  of  the  judicia 
ry  department  of  the  Government,  and  to  set 
tle,  on  the  stable  basis  of  judicial  authority, 
the  legal  code  of  Kentucky.  Truly  he  wa& — 
to  his  own  State — what  Edmund  Pendleton 
was  to  Virginia,  and  John  Marshall  to  the 
United  States — the  Palinurus  of  our  lawyers 
and  our  judges.  And  a  more  honest  and  faith 
ful  pilot  never  stood  at  the  helm  of  jurispru 
dence.  A  careful  review  of  his  many  judicial 
acts,  as  published  in  our  State  Reports  from 
1st  Bibb  to  3d  Munroe,  including  fifteen  vol 
umes,  will  result  in  the  conviction  that  he  was 
equalled  by  but  few  Judges  and  surpassed  by 
still  fewer  of  any  age  or  country.  Such  an 
analysis  cannot  be  here  atiempted. 

But,  for  the  purpose  of  illustrating  his  official 
firmness  andj  prudence,  we  will  cursorily  no 
tice  a  few  only  of  his  decisions: 

1st.  In  the  year  1813,  the  question  whether 
a  merely  legal  or  constructive  seizin  was  suf 
ficient  for  maintaining  a  "Writ  of  Right"  came 
up,  for  the  first  time,  for  decision  by  the  Court 
of  Appeals  of  Kentucky.  Few"  questions 
could  have  been  more  interesting  or  eventful 
— especially  as  some  of  the  best  lands  in  our 
State,  which  had  been  improved  and  occupied 
for  many  years  by  our  own  citizens  under  titles 
deemed  good  by  them,  were  claimed  under  dor- 
mamt,  though  superior  titles  held  by  non-resi 
dents,  and  the  ultimate  assertion  of  which  dis 
turbed  the  tranquility  of  our  society  and  im 
paired  the  security  of  meritorious  occupants  of 


our  soil.  If  an  actual  seizin,  or  personal 
entry,  or  pedis  possessio,  were  indispensable  to 
the  maintenance  of  a  writ  of  right,  many  of 
the  claims  of  non-residents  could  not  have 
been  successfully  asserted  against  an  adversary 
occupant  who  had  been  possessed  of  the  land 
more  than  twenty  years.  But  if  a  constructive 
seizin,  resulting  from  a  perfect  title,  were 
alone  sufficient  to  support  a  "writ  of  right," 
many  non-resident  claimants,  who  would  oth 
erwise  be  remediless,  might  evict  the  occu 
pants  in  that  species  of  action,  which  could  be 
maintained  on  the  demandent's  own  seizin 
within  thirty  years,  and  on  that  of  his  ances 
tor  within  fifty  years,  even  though  he  had  nev 
er  been  on  the  land.  In  an  opinion  written  by 
Chief  Justice  Boyle,  and  reported  in  3d  Bibb, 
(Speed  vs.  Buford,)  our  Court  of  Appeals 
decided  that,  according  to  the  common  law, 
actual  seizin  was  indispensable  to  the  mainte 
nance  of  a  "writ  of  right."  A  petition  for  a 
rehearing  having  been  granted  by  the  Court, 
the  Supreme  Court  of  the  United  States,  be 
tween  the  granting  of  the  rehearing  and  the 
final  decision  upon  it,  unanimously  decided, 
in  the  case  of  Green  vs.  Liter,  that  mere  legal 
seizin,  resulting  from  a  perfect  title,  was  suffi 
cient  to  maintain  a  "writ  of  right."  But,  as 
that  decision,  though  conclusive  in  the  case  in 
which  it  was  rendered,  was  not  controlling 
authority  for  the  State  Court  on  a  question  de 
pending  on  the  State  law,  and  as  to  which  the 
National  Court  could  not  reverse  or  revise  the 
judgment  of  the  highest  Court  of  Kentucky, 
Chief  Justice  Boyle,  as  much  as  he  respected 
the  tribunal  which  rendered  it,  and  anxious  as 
he  undoubtly  was  for  harmony  and  uniformity, 
still  clearly  adhering  to  his  first  opinion,  firm 
ly,  but  temperately  and  respectfully  reasserted 
and  maintained  it  by  affirming  the  coincident 
judgment  of  the  inferior  court,  even  though 
Judge  Logan,  his  only  colleague  on  the  bench, 
in  that  case,  receded  and  yielded  to  the  opin 
ion  of  the  Supreme  Court  of  the  Union.  And 
the  decision,  thus  given  by  Boyle  alone,  has 
never  since  been  overruled. 

2d.  Though  Chief  Justice  Boyle  had  been 
inclined  to  the  opinion  that  the  Bank  of  the 
United  States  was  unconstitutional,  yet,  after 
the  Supreme  Court  of  the  United  States  had 
decided  unanimously  that  it  was  constitution 
al,  he  acquiesced  and  recognized  the  authori- 
tativeuess  of  the  opinion  of  the  National  Court 
on  a  national  qustion. 

3d.  Neveitheless,  although  a  majority  of 
the  Judges  of  the  Supreme  Court  of  the  Union 
had  decided,  in  a  solitary  case,  that  the  Ken 
tucky  statute  ef  1812,  for  securing  to  bonajidc 
occupants  a  prescribed  rate  of  compensation 
for  improvements  before  they  could  be  evicted 
by  suit,  was  inconsistent  with  the  compact 
between  Virginia  and  Kentucky,  and  there 
fore  unconstitutional — Chief  Justice  Boyle, 
with  the  concurrence  of  his  associates,  main 
tained  the  validity  of  that  protective  enact 
ment.  And  the  doctrine  thus  settled  by  our 
State  Court  has  never  since  been  disturbed. 

In  this  instance — being  clearly  of  the  opin 
ion  that  the  compact  guaranteed  only  the  titles 


222 


A  BIOGRAPHICAL  SKETCH 


to  land  according  to  the  laws  of  Virginia  tin- 1  disregard  a  legislative  act  was  derided  by 
der  which  they  had  been  acquired,  and  did  some,  and  the  correctness  of  their  decision 
not  restrict,  in  any  manner,  the  authority  of  - 


Kentucky  over  the  remedies  for  asserting  them 
and  that  the  occupant  law  did  not  impair  the 
obligation  of  any  contract  our  distinguished  Ch. 
Justice  did  not  feel  bound  or  even  permitted  to 
surrender  his  own  judgment  to  the  conflicting 
judgment  of  a  mere  majority  of  the  Judges  of 
the  Supreme  National  Court  in  a  single  case 
and  never  reasserted  by  all  the  Judges,  or 
even  a  majority.  And,  in  thus  acting,  he  ex 
hibited,  in  a  becoming  manner,  his  own  firm 
ness  and  purity,  whilst  he  did  not  manifest 
any  unjustifiable  obstinacy  or  want  of  due  res 
pect  for  the  opinions  of  a  majority  of  the  fede 
ral  Judges  on  a  national  question.  Had  Boyle's 
opinion  been  indefensible,  the  fair  presump 
tion  is  that  it  would  have  been  overruled;  and 
the  fact  that  it  has  never  been  disturbed  is  ev 
idence,  almost  conclusive,  that  it  was  right. 
And  thus  he  and  his  colleagues,  by  their  firm 
ness  and  intelligence,  maintained  the  sover 
eign  rights  of  their  own  State,  without  any 
dereliction  of  official  authority. 

4th.  The  only  other  case  to  which  we  shall 
here  allude,  is  the  memorable  one  arising  out 
of  a  series  of  legislative  enactments,  designed 
for  the  relief  of  debtors,  and  therefore  charac 
terized  as  the  "relief  system.''  Having  char 
tered  a  bank  denominated  "the  Bank  of  the 
Commonwealth,"  the  notes  of  which — as  the 
natural  consequence  of  deficient  capital — were 
constantly  fluctuating  in  value,  and  once  sunk 
to  less  than  50  per  cent,  of  their  denominated 
worth — the  Legislature,  among  other  subsidary 
enactments,  passed  an  act  for  prolonging, 
from  three  months  to  two  years,  tho  right  of 
replevying  judgments  and  decrees  on  con 
tracts,  unless  the  creditor  would  agree  to  ac 
cept,  at  its  nominal  value,  the  depreciated 
paper  of  that  Bank. 

That  act;,  as  well  as  the  general  system  of 
legislation  which  it  consummated,  was  popu 
lar.  And  the  minority,  opposed  to  the  whole 
system  as  inexpedient,  unjust  and  unconsti 
tutional,  was,  of  course,  denounced  as  aristo 


crats,  federalists,  Shylocks. 
onist  parties,  denominated 


When  the  antag- 
frelief  "  and  "an 


ti-relief,"  had  become  greatly  excited,  and  the 
subject  of  their  division  had  silenced  every 
other  common  topic  of  party  discussion,  and 
produced  •xtreme  discord — Chief  Justice 
Boyle,  and, his  associates  of  the  Court  of  Ap 
peals,  at  the  fall  term,  1823,  decided  unani 
mously,  in  the  cases  of  Blair  et  al.  vs.  Williams, 
and  of  Lapsley  vs.  Brashears  et  al.  reported  in 
-tihLittell,  that  the  two  years'  replevin  statute, 
in  its  retroactive  operation  on  contracts  made 
prior  to  the  enactment  of  it,  was  repugnant  to 
that  clause  of  the  federal  constitution  which 
declares  that  no  State  shall  pass  any  act  "im 
pairing  the  obligation  of  contracts."  That 
decision  was,  as  might  have  been  expected, 
very  offensive  to  the  dominant  party  in  the 
State — and  the  appellate  Judges  were  de 
nounced  as  "tyrants,  usurpers,  kings."  Cor 
rupt  motives  were  imputed  to  them  by  many 
partizans — their  authority  thus  to  annul  or 


was  confidently  assailed  by  all  or  nearly  all 
of  the  "relief  party."  During  the  first  ses 
sion  (1823-4,)  after  the  date  of  the  decision, 
a  majority  of  the  Legislature,  but  not  two- 
thirds,  adopted  resolutions  condemnatory  of 
the  Chief  Justice  and  his  colleagues,  and  call 
ing  on  the  Governor  to  remove  them  from  of 
fice;  which  were  prefaced  by  a  long  "pream 
ble,"  assailing  their  decision  as  unauthorized, 
ruinous  and  absurd.  That  attempt  t«  intimi 
date  and  degrade  the  court  having  failed,  the 
same  party,  still  greatly  ascendant,  deter 
mined,  at  the  next  session,  to  remove  the 
Judges  from  office  by  abolishing  the  Court  of 
Appeals,  established  by  the  constitution,  and 
substituting  a  "new  court,"  by  a  statute  enti 
tled  tke  "re-organizing  act."  Under  that  act 
other  persons  were  commissioned  as  the  appel 
late  Judges,  opened  court,  and  attempted  to  do 
business.  But  the  act  being  resisted  by  "the 
old  Judges"  and  the  party  which  sustained 
them,  a  judicial  anarchy  ensued,  and  both  par 
ties  appealed  to  the  only  ultimate  arbiters  of 
such  a  conflict — the  people  at  the  polls.  Here 
a  great  civil  battle  was  to  be  fought;  a  battle  in 
wkich  the  constitution  of  Kentucky  was  the 
stake,  and  on  the  issue  of  which  that  funda 
mental  law  was  either  to  triumph  or  to  fall, 
perhaps  forever.  It  triumphed.  The  people 
unfurled  its  white  banner  and  inscribed  on  it, 
with  their  own  hands,  in  new  and  indellible 
colors,  "supreme  law" — saored  and  inviolable" 
— "and  far  above  the  transient  passions  of  par- 
tizan  strife." 

The  radical  and  decisive  objection  to  the 
constitutionality  of  "the  re-organizing  act" 
was,  that,  as  the  constitution  expressly  ordain 
ed  and  established  the  Court  of  Appeals,  no 
legislative  statute  could  abolish  it;  and  that, 
therefore,  as  the  same  tribunal  instituted  by 
the  constitution  still  existed,  'the  old  Judges,' 
who,  by  an  express  provision  of  the  same  con 
stitution,  were  entitled  to  hold  their  offices 
during  good  behavior  and  the  continuance  of 
their  court — could  not  bo  legislated  out  of  of 
fice  by  a  less  majority  than  that  of  two-thirds 
of  both  branches  of  the  legislature,  that  being 
the  requisite  constitutional  majority  for  re 
moval  by  address. 

When  the  final  appeal  was  made  to  the  bal 
lot  box,  all  the  talents  and  moral  energies  of 
Kentucky  were  brought  out  into  most  active 
and  efficient  exertion,  and  the  whole  Union 
looked  oa  with  intense  anxiety;  for  the  issue 
involved  the  integrity  and  efficacy  of  funda 
mental  law — the  stability  and  efficiency  of  an 
cnli 
of 

whether  the  people  will,  in  every  emergency, 
maintain  the  rightful  supremacy  of  their  own 
organic  will  over  the  subordinate  and  con- 


ightened  judiciary  as  the  only  sure  anchor 
that    law — and    the  momentous  question 


flicting  will  of  their  legislative  agents.  The 
people  of  Kentucky  determined  that  issue  and 
answered  that  question  with  a  most  decisive 
emphasis  in  the  never-to-be-forgotten  year  of 
1825.  Nevertheless,  after  all,  the  Senate  of 
Kentucky  nothavingbeen  fully  subjectad  to  the 


OP  THE  HON.  JOHH  BOYLE. 


223 


popular  ordeal  at  the  polls,  still  retained  a 
small  majority  in  favor  of  the  proscribed  act, 
and  that  majority,  in  defiance  of  the  people's 
award,  resisted  the  repeal  of  the  act.  But  the 
"New  Court"  vanished,  and  the  "Old  Court" 
re-appeared  and  resumed  its  suspended  func 
tions  without  further  obstruction;  and  John 
Boyle  was  still  the  honored  Chief  Justice  of 
that  signally  persecuted,  but  more  signally 
triumphant,  "Old  Court."  Had  he  consulted 
his  own  personal  wishes  and  repose,  he  would 
have  submitted  with  alacrity  to  the  legislative 
mandate.  He  was  tired  of  his  office — had 
worn  out  his  constitution  in  a  laborious  dis 
charge  of  its  irksome  and  incessant  duties — 
had  become  no  richer  by  his  small  salary;  and 
no  man  on  earth  was  less  belligerent,  or  had 
less  taste  for  notoriety  or  for  strife  and  obloquy. 
Most  anxious  was  he,  we  well  knew,  to  escape 
the  impending  storm.  But  he  felt  that  it  was 
his  duty  to  his  country,  his  character,  and  the 
constitution,  to  stand  firm  on  the  judicial  ram 
part,  even  though  he  should  sink  with  it,  a 
martyr  in  the  great  cause  of  constitutional  se 
curity. 

Had  he  and  his  colleagues  bowed  to  the  un- 
authoritative  will  of  the  legislature,  they 
would  have  been  treacherous  to  the  constitu 
tion  and  faithless  to  a  proscribed  minority,  for 
whose  security  that  supreme  law  was  adopt 
ed  by  the  people  and  placed  under  the  guar 
dianship  of  a  judiciary  so  organized  as  to  be 
able,  if  firm  and  faithful,  to  uphold  its  right 
ful  supremacy  against  the  passions  and  the 
will  of  any  majority  less  than  that  of  two- 
thirds  of  the  legislature. 

The  great  object  of  the  constitution  was  to 
secure  certain  fundamental  rights  from  inva 
sion  by  a  bare  majority  of  the  people  or  their 
legislative  agents.  That  end  could  not  be  ef 
fectuated  without  an  enlightened  Judiciary, 
armed  with  power  to  prevent  the  enforcement 
of  unconstitutional  legislation.  Such  a  Ju 
diciary,  invested  with  such  authority,  was  or 
dained  by  the  constitution  itself;  and,  to  ena 
ble  it  to  execute  its  high  trust,  honestly  and 
fearlessly,  it  was  made,  in  a  great  degree, 
independent  of  a  popular  caprice  and  legisla 
tive  authority.  Here  we  find  the  constitu 
tion's  inherent  power  of  self-preservation — 
this,  at  last,  is  its  chief  conservative  princi 
ple — without  which  a  numerical  majority 
would  be  politically  omnipotent,  the  few 
would  be  subjugated  by  the  many,  reason 
would  bow  to  passion — and  the  simplest 
problem  in  arithmetic  might  solve  the  whole 
mystery  and  power  of  our  democratic  institu 
tions,  by  the  mighty  magic  of  "the  majority 
of  numbers." 

But  had  Boyle  and  his  colleagues,  consult 
ing  either  their  own  ease  or  their  personal 
fears,  yielded  to  popular  clamor  or  to  legisla 
tive  denunciation,  they  would  have  surren 
dered  the  constitution  to  the  keeping  of  the 
legislative  department  which  it  was  framed 
to  control— and  such  an  example  might  have 
given  practical  supremacy  to  unlicenced  num 
bers — to  physical  over  moral  power — to  matter 
oyer  mind — and  thus  eventually  haye  con 


verted  our  beautiful  system  of  organized  lib 
erty  into  unalloyed  and  uncontrolled  anarchy. 

But  our  Judges  did  not  thus  ingloriously 
fly.  Like  Leonidas,  with  his  Spartan  band, 
Boyle  and  his  associates  stood  firmly,  a  for 
lorn  hope,  in  the  last  Thermopylce  of  the  consti 
tution — but  more  fortunate  than  the)  Grecian 
martyrs,  they  achieved  a  glorious  triumph  for 
mankind,  and  lived  to  enjoy  the  homage  of 
their  country's  gratitude. 

A  civic  victory  more  eventful  or  glorious 
has  seldom  been  won — its  spoils  are  the  fruits 
of  a  rescued  and  reanimated  constitution,  the 
practical  vigor  and  supremacy  of  which  con 
stitute  the  only  surepalladium  of  the  rights  of 
men — social,  civil  and  religious.  And  the  ex 
ample  has  been  most  salutary — and  will,  as 
we  trust,  "be  useful  in  all  time  to  come. 

Had  Boyle  been  suppliant,  he  might  have 
been,  for  the  moment,  the  idol  of  a  dominant 
party;  but  such  popularity,  being  meretricious, 
would  have  been  as  evanescent  as  the  fleeting 
breath  on  which  it  would  have  floated.  Solid 
fame  can  be  acquired  only  by  solid  worth — 
lasting  renown  is  the  matured  fruit  of  noble, 
virtuous,  honest  deeds.  Boyle  deserved  such 
renown  for  his  self-devotion  on  the  altar  ofhis 
country's  constitution;  and,  had  he  been  even 
sacrificed  on  that  altar,  his  fame  should  have 
been  associated  with  that  of  Socrates,  who 
was  doomed  to  the  hemlock  only  because  he 
would  not  make  a  mean  compromise  of  eternal 
truths  with  the  vulgar  prejudices  and  vices  of 
his  day. 

As  the  constitution  is  the  supreme  law,  no 
legislative  enactment  which  conflicts  with  it 
can  be  law;  all  such  unauthorized  or  prohibit 
ed  acts  must  be  void.  And,  therefore,  as  it  is 
the  province  of  the  Judiciary  to  administer  the 
law,  it  is  the  duty  of  a  Judge  to  disregard,  as 
a  nullity,  any  act  of  assembly  which  is  incon 
sistent  with  the  fundamental  law  of  the  sov 
ereign  people,  and  thus  to  uphold  their  organ 
ic  will  against  the  opposing  and  forbidden 
wills  of  their  legislative  agents.  And,  conse 
quently,  as  the  constitution  forbids  every  legis 
lative  enactment  impairing  the  obligation  of 
contracts,  it  was  the  obvious  duty  of  the 
Court  of  Appeals  to  declare,  as  it  did,  that 
the  two  years'  replevin  act  was  void,  if  they 
were,  as  doubtless  they  were,  clearly  of  the 
opinion  that  it  impaired  the  obligation  of  con 
tracts  made  prior  to  the  enactment  of  it. 

And  was  it  not  clearly  unconstitutional? 
It  was  only  the  civil  or  legal  obligation  of  con 
tracts  which  the  constitution  contemplated — 
for  no  legislation  could  impair  a  moral  obliga 
tion.  Then  what  is  a  legal  obligation?  Is 
it  not  the  binding  or  coercing  efficacy  of 
the  law?  Can  a  contract,  which  the  lav 
will  not  sanction  or  enforce,  have  any  legal  ob 
ligation.  Can  the  law  be  said  to  bind  a  party 
whom  it  will  not  coerce?  And  how  alone 
does  the  law  enforce  contracts?  Is  it  not  by 
the  legal  remedies  by  suit  and  execution? 
Then,  will  not  the  abolition  of  all  such  reme 
dial  agency  of  the  law  ^destroy  the  merely  le 
gal  obligation  of  contracts?  And  if  it  will, 
must  not  any  statute,  which  impairs  th»  rem- 


224 


A  BIOGRAPHICAL  SKETCH 


edy,  also  impair,  in  the  same  degree,  the  ob 
ligation  of  pre-existing  contracts?  And  if  the 
legislature,  by  acting  on  the  remedy,  could  no 
impairthe  legal  obligation  of  antecedent  con 
tracts,  how  •will  it  be  possible  to  impair  the  ob 
ligation  of  contracts  by  any  species  of legisla 
tion?  The  legislature  cannot  change  the  terms 
or  alter  the  form  of  a  contract — it  can  only  mod 
ify  its  legal  effect — and  this  it  can  only  do  by 
giving,  withholding  or  modifying  the  reme' 
dies  necessary  for  enforcing  the  contract 
Right  and  Remedy,  or  the  civil  obligation  of  E 
contract  and  the  civil  remedy  for  enforcing  it 
are  essentially  different.  But,  though  the  le 
gislature  may  therefore  change  the  remedy 
without  impairing  the  right,  yet  it  cannot  de 
stroy  the  legal  obligation  of  a  contract  withoul 
abolishing  all  legal  remedy,  nor  impair  it 
without  making  the  remedy  less  efficient  or 
available — and  therefore  it  cannot  abolish  all 
remedy  for  existing  contracts,  nor  so  change 
the  remedy  as  to  essentially  impair  them.  And 
if  theretrospective  extension  of  indulgence  un 
der  execution  for  two  years  did  not  impair  the 
legal  obligation  of  contracts,  an  unlimited  ex 
tension,  or  even  an  abrogation  of  all  means  of 
coercion  would  not  have  been  an  impairment 
of  the  obligation  of  any  contract.  But  the  one, 
as  certainly  as  either  of  the  others,  would,  in 
our  view,  be  an  impairment  of  the  legal  obli 
gation  of  contracts  existing  and  unperformed 
at  the  date  of  the  enactment.  So  every  court 
in  the  Union,  which  has  adjudicated  on  the 
question,  has  deeided.  So  thought  Boyle;  and 
therefore  so  he  decided,  at  all  hazards.  And,  in 
thus  deciding,  he  faithfully  discharged  his 
duty  to  the  parties  litigant,  to  his  own  con 
science,  and  to  his  country — revived  a  pros 
trate  constitution,  and  inspired  the  commer 
cial  community  with  confidence. 

It  was  for  that  decision  alone  that  he  was 
denounced  and  persecuted,  and  his  state  was 
convulsed  by  a  most  perilous  conflict.  As 
long  as  the  storm  raged  he  would  not  "give  up 
the  ship  of  state."  But  as  soon  as  the  troubled 
elements  were  stilled  by  the  people's  voice, 
and  he  saw  the  Constitution  safely  moored, 
with  its  broad  banner  still  proudly  floating,  he 
determined  to  retire  from  the  toils  and  cares  of 
an  office  which  he  had  so  long  and  so  nobly 
filled  and  illustrated.  It  had  been  his  settled 
purpose,  from  the  beginning  of  the  judicial 
contest,  to  resign  his  office  as  soon  as  he  could 
do  so  consistently  with  fidelity  to  the  Consti 
tution  and  to  his  own  honor.  And  now,  the 
people  having,  at  the  August  elections  of  1826, 
settled  the  controversy  finally  and  conclusive 
ly,  he  accordingly,  on  the  8th  of  November  of 
that  year,  resigned  the  Chief  Justiceship  of 
Kentucky — thus  saying  to  his  countrymen: 
"Persecuted  and  abused  for  honestly  main 
taining  the  best  interests  of  yourselves  and 
your  children,  and  for  helping  to  save  your 
Constitution,  I  now  voluntarily  resign,  and 
with  alacrity,  the  most  important  office  in 
your  gift — an  office  full  of  labor  and  responsi 
bility,  and  to  the  duties  of  which  I  have  dedi 
cated  the  prime  of  my  life— an  office  which  I 
ney«r  sought,  and  the  profits  of  which  hare 


been  barely  sufficient  to  feed  my  wife  and 
children — an  office  in  which  I  have  grown 
gray,  and  from  which  I  retire  at  last  much  the 
poorer,  in  consequence  of  having  so  long  held 
it — now  Jill  it  better,  if  you  can." 

But  the  Federal  Government,  anticipating 
his  resignation,  had  offered  him  the  office  of 
District  Judge  of  Kentucky,  which  he  accept 
ed  as  soon  as  he  retired  from  that  of  Chief 
Justice.  This  new  office  he  filled  admirably 
— but  it  never  pleased  him.  Its  duties  were 
not  sufficient  to  give  him  active  employment, 
and  he  felt  some  scruples  of  conscience  in  re 
ceiving  the  salary  (only  $1,500  per  annum,) 
without  performing  more  public  service.  But 
he  was  induced  to  hold  it  until  his  death. 

Upon  the  death  of  Judge  Todd,  he  refused 
to  be  recommended  to  the  President  as  his 
successor  on  the  Bench  of  the  Supreme  Conrt 
of  the  United  States — and  subsequently  upon 
the  demise  of  Judge  Trimble,  he  was  unwil 
ling  to  accept  the  same  office — because  he  pre 
ferred  retirement,  and  distrusted  his  qualifica 
tions  for  a  place  so  high!  Rare  and  excellent 
man! 

He  now  devoted  most  of  his  time  to  the 
reaching  of  law,  to  miscellaneous  reading,  aod 
o  agriculture.  He  was,  for  one  year,  sole 
arofessor  of  law  in  Transylvania — but  was 
generally  engaged  at  home  in  giving  instruc- 
ion  to  such  young  men  as  sought  it — and 
they  were  not  a  few.  He  became  much  pleased 
with  rural  employments,  and  talked  con 
amore  of  ploughs  and  ploughing,  cattle  and 
grazing. 

But  he  was  hastening  to  the  end  of  his  jour- 
ley  of  life.  His  constitution  had  been  im 
paired  by  hard  public  service.  During  the 
prevalence  of  the  cholera  in  1833  his  wife 
lied,  and  he  himself  had  a  violent  attack  of 
,hat  fatal  malady,  which  he  survived.  But  all 
lis  hopes  of  domestic  happiness  being  buried 
n  the  grave  of  his  beloved  wife,  he  continued 
onely  and  desolate,  and  never  recovered  his 
'ormertone  of  health  or  spirits.  He  talked  of 
lis  own  death  as  very  near  and  not  undesira- 
)le.  And  though  he  had,  in  his  early  life, 
)een  an  infidel,  and  had  always  been  a  skep- 
ic,  he  now  studied  theology,  talked  reverently 
>f  the  Christian  religion,  and  finallv,  not  a 
month  before  his  death,  expressed  to  us  his 
irrn  and  thorough  conviction  of  the  divinity  of 
,hat  system,  and  his  determination  to  become  a 
nember  of  some  Christian  church.  Bat  this 
ast  and  best  boon  he  was  not  permitted  to  en- 
oy.  He  died  rather  unexpectedly,  but  not 
suddenly,  on  the  28tb|day  of  January,  1835,  in 
lis  own  house,  like  a  Christian  philosopher, 
inn,  placid,  and  rational — surrounded  by  his 
physicians,  his  younger  children,  and  his  de 
moted  servants.  And  in  the  agonies  of  death, 
urning;himself  on  his  couch,  he  said,  "Doctor, 
r  am  dying!" — and  with  his  expiring  breath 
jaculatod,  firmly  and  audibly — "I  have  lived 
army  country!!"  These  were  his  last  words 
n  earth,  and  they  were  true. 

What  is  it  to  live  for  one's  country  ?  It  is  not 
o  get  rich,  nor  to  hold  office,  nor  to  be  gazed 
it  with  vulgar  admiration,  nor  to  win  a  battle, 


6F  THE  HON.  JOHN  BOYLE. 


225 


nor  to  make  a  noise  in  the  world.  Many  who 
have  accomplished  all  these  have  been  a  curse 
rather  than  a  blessing  to  mankind.  But  he, 
and  he  alone,  who  honestly  dedicates  his  tal 
ents  and  his  example  to  the  happiness  and  im 
provement  of  his  race,  lives  for  his  country, 
whatever  may  be  his  sphere.  He  who  seeks 
his  own  aggrandizement  at  the  expense  of 
truth,  or  principle,  or  candor,  does  not  live  for 
his  country — nor  can  he  live  for  his  country, 
in  the  full  sense,  whose  example  is  demorali 
zing,  or,  i-n  any  way  pernicioas.  But  he  truly 
lives  for  his  country,  who,  in  all  the  walks  of 
life  and  relations  of  society,  does  as  much 
good  and  as  little  harm  as  possible,  and  al 
ways  acts  according  to  the  disinterested  sug 
gestions  of  a  pure  conscience  and  a  sound 
head.  Whatever  may  be  his  condition — high 
or  low,  conspicuous  or  obscure — he,  whose  life 
exemplifies  and  commends  the  negative  and 
positive  virtues,  personal,  social  and  civil  — 
who  lives  in  the  habit  of  pure  morality,  en 
larged  patriotism  and  disinterested  philan 
thropy — and  whose  conduct  and  example  are, 
as  far  as  known  and  felt,  useful  to  mankind — he 
and  he  alone  lives  for  his  country.  And  hence 
it  is  perfectly  true  that  a  virtuous  peasant  in  a 
thatched  hut  may  live  more  for  his  country 
than  many  idolized  orators,  triumphant  poli 
ticians,  or  laureled  chieftains. 

The  life  of  John  Boyle  exhibits  a  practical 
illustration  of  all  the  nobler  and  more  useful 
virtues  of  our  race.  Xo  man  was  ever  more 
chaste  and  upright  in  the  whole  tenor  of  his 
conduct;  he  had  no  selfish  pride  or  sinister 
ambition;  he  was  punctiliously  just  and  truth 
ful;  he  was  as  frank  and  guileless  as  an  artless 
child  untutored  in  the  arts  and  ways  of  social 
life — his  humility  was  most  amiable  and  his 
benevolence  unsurpassed.  He  always  spoke 
as  he  thought  and  acted  as  he  felt — and  his 
sentiments  were  pure,  and  honorable,  and  al 
most  always  right.  He  devoted  his  life  to  the 
cultivation  of  his  moral  and  intellectual  facul 
ties,  and  all  chose  faculties  were  dedicated  to 
the  honest  and  useful  service  of  his  fellow-men 
his  family,  and  his  country.  He  was  a  patriot 
and  benefactor  in  a  pure  and  comprehensive 
sense.  His  heart  was  his  country's — his  head 
was  his  country's — his  hand  was  his  country's 
—his  whole  life  was  full  of  philanthropy  and 
lofty  patriotism — and  his  example,  altogether 
blameless  and  benificent,  presents  a  full-orbed 
and  spotless  model,  worthy  of  all  imitation. 

In  contemplating  his  character  we  see  noth 
ing  to  condemn— much  to  admire. 

As  a  lawyer,  he  was  candid,  conscientious 
and  faithful — as  a  statesman,  honest  disinter 
ested,  and  patriotic — as  a  Judge,  pure,  impar 
tial,  and  enlightened — as  a  citizen,  upright,  j 
just   and  faultless — as  a  neighbor,  kind,  affa-  j 
ble   and  condescending — as    a    man.   chaste, 
modest  and  benignant — as  a  husband,    most 
constant,  affectionate  and  devoted. 

We  have  heard  his  amiable  and  excellent 
wife  declare  in  his  presence,  not  longer  than  a 
year  before  her  death,  that,  notwithstanding 
all  the  cares  and  crosses  of  domestic  life,  there 
had  never  been  a  sour  look,  a  harsh  word  or  a 
29 


hard  thought  between  them,  from  the  event 
ful  moment  when  their  destinies  were  linked 
together  on  the  altar!  And  knowing  them 
both  as  we  did,  we  doubt  not  that  she  told  the 
truth. 

Here,  in  this  man,  we  present  a  fit  exemplar 
for  all  men,  in  every  condition  of  social  and 
civil  life. 

The  noiseless  life  we  have  thus  imperfectly 
sketched,  illustrates  most  impressively  the  old 
fashioned  truth,  that  "honesty  is  the  best  poli 
cy" — shows  what  may  be  achieved  by  indus 
try,  probity,  and  undissembled  humility — 
proves  how  much  better  and  more  honorable  it 
is  to  deserve  than  to  seek  preferment,  and  how 
certain  modest  merit  will  ever  be  of  ultimate 
notice  and  reward— and  may  we  not  add,  that  it 
affords  strong  evidence  of  the  important  fact, 
that  an  enlightened  mind,  when  once  ab 
stracted  from  the  cares  of  earth  or  mellowed 
by  affliction,  will  be  apt  to  see  the  light  and 
feel  the  value  of  the  Christian's  hope,  and  to 
embrace,  as  the  best  of  all  books,  the  Chris 
tian's  Bible? 

Surely  this  was  a  good  and  a  great  man— 
and  most  truly  did  he  asseverate,  on  his  exit 
from  earth,  "I  HAVE  LIVED  FOR  MY 
COUNTRY." 

Such  is  a  brief  outline  of  the  life  aud  charac 
ter  of  one  of  the  best  and  greatest  of  men,  has 
tily  and  imperfectly  sketched,  by  one  who 
knew  him  long  and  well,  and  who  feels  too 
much  respect  for  his  virtues  and  reverence  for 
his  memory  to  exaggerate  or  disguise  the 
truth  of  faithful  biography  with  any  embel 
lishment  of  empty  panegyric.  The  best  eulo 
gy  of  Boyle  would  be  a  naked  exhibition  of 
him,  as  he  was,  without  any  drapery  from  ei 
ther  fancy  or  friendship.  Posterity  would  be 
greatly  benefitted,  and  his  own  fame  much  ex 
alted  by  such  a  portraiture. 

The  death  of  such  a  man,  in  the  prime  of  his 
life,  was  a  great  public  calamity.  His  inti 
mate  friends  felt  it  most  deeply,  and  regretted 
that  an  inscrutable  Providence  had  not  spared 
him  to  delight  and  instruct  the  countrymen 
whom  he  left  behind  him.  Had  he  lived  to  a 
mellow  old  age,  he  would  have  enjoyed  the 
ripe  fruits  of  his  earlier  habits  and  toils,  and 
have  rendered  inestimable  service  to  his  coun 
try  in  the  example  of  a  venerable,  virtuous  and 
enlightened  Patriarch. 

But  doubtless  it  was  better  for  him  to  die 
when  he  did.  He  had  lost  his  dearest  earthly 
treasure — his  house  had  become,  to  him,  deso 
late — and,  by  his  early  death,  he  escaped  all 
the  infirmities  of  extreme  age.  He  died  full  of 
honor  and  of  hope,  when  his  setting  sun  had 
"all  its  beams  entire — itsjierceness  lost." 

The  worth  of  such  a  man  is  never  fully 
known  until  long  after  his  death.  Posthu 
mous  fame  is  of  slow  growth,  and  never  at 
tains  its  full  elevation  until  it  has  survived  all 
personal  prejudice  and  envy.  Though  Boyle 
died  in  peace  with  all  mankind,  and  left  not 
an  enemy  behind,  yet  his  death  was  followed 
by  no  sepulchral  honors  or  postmortuary  tes 
timonial.  No  funeral  eulogy,  no  public  meet 
ing,  no  Bar  resolutioa,  nor  even  obituary  no- 


226  A  BIOGRAPHICAL  SKETCH. 


tice  announced  that  he  was  dead,  and  that 
Kentucky  mourned.  Nor  has  either  marble 
or  canvass,  chisel  or  pencil,  preserved  any 

p    1     •  T»        *       4  1     •          *  .  _  1     _  .L     1      _ 


for  ages.  Boyle's  illustrious  deeds  and  rare 
virtues,  if  faithfully  recorded  and  transmit 
ted,  will  be  long  and  gratefully  remembered 

i  '  L-'iAJllJ  T*          ' 


trace  of  his  person.  But  this  is  just  what  he  jby  approving  posterity.  And  should  a  Tact- 
would  have  preferred.  He  desired  none  of  the  i  tus  ever  become  his  biographer,  his  name  will 
empty  pageantry  of  mock  sorrow — his  memory  be  as  immortal  and  at  least  as  mucli  honored 


needed  no   perishable    memorial.     Like    old 
Cato,  he  built  his  own  monument — and  one 


as  that  of  Agricola . 


of  our  race  moulder  with  their  dead  bodies,  Boyte-and  then,  like  him,  he  may  be  able 
and  are  «oon  buried  forever  with  the  dying  tonestly  to  declare  with  the  «pmng  breath 
generation  that  knew  and  loved  them,  f  heir  ^ 

deeds  and  their  virtues  alone  may  be  embalmed  .1 


PRELECTION. 


Lexington,  Nov.  14th,  1842. 

Dear  Sir: — We,  the  undersigned,  a  Committee  appointed  on  the  part 
of  the  Law  Class,  are  instructed  to  request  a  copy  of  your  very  eloquent 
and  appropriate  address,  delivered  before  the  Class  on  Thursday  last. 
By  acquiescing,  you  will  confer  a  favor  upon  us  individually,  and  upon 
the  Class. 

D.  HOWARD  SMITH, 
JAMES  L.  ALLEN, 
JOHN  I.  JACOB,  JR., 
W.  B.  HENDERSON, 
JOSEPH  P.  FOREE, 
HON.  GEORGE  ROBERTSON.  Committee. 


Lexington,  Nov.  17th,  1842. 

Gentlemen:— The  little  Introductory  Address,  for  which  you  have  been 
pleased  to  express  such  favorable  consideration,  was  intended  chiefly  for 
yourselves  and  those  whom  you  represent,  and  therefore  it  is  yours  to 
dispose  of  as  you  may  desire . 

Yours j  respectfully, 

G.  ROBERTSON. 
Messrs.  D.  H.  Smith,  J.  L.  Allen,  arid  others. 


ADDRESS. 


Harmony  is   nature's   law,   and 
simplicity  the  order  of  Providence. 


wonderful ;  old  of  manhood   and   the  illimitable  territory 


Gravita 


tion  is  not  more  universal  or  effective  in  the 
material  than  love  is  in  the  moral  world.  The 
moral,  as  well  as  the  physical  economy  of  the 
earth,  is  upheld  and  harmonized  by  an  admira 
ble  chemistry,  as  universal  and  resistless  as  the 
voice  of  God.  We  are  not  gregarious  merely, 
but  instinctively,  necessarily,  and  eminently 
social.  Society  is  the  natural  state  of  man, 
and  love  is  the  attractive  element  of  cohesion 
which  binds  us  together,  and  the  gravitating 
principle  which  holds  us  fast,  as  with  chains 
of  gold,  to  the  almighty  centre  and  source  of 


of  law,  and  that  it  might  not  be  altogether  un 
acceptable  to  a  miscellaneous  auditory,  whether 
under  the  yoke  or  in  a  state  of  single  blessed 
ness,  I  propose,  in  this  introductory  address, 
unexpectedly  and  very  hastily  prepared,  to 
present  to  you  a  syllabus  of  our  law  respecting 
marriage  and  divorce. 

"We  have  said,  and  truly,  that  marriage  in 
both  a  natural  and  civil  union,  the  parent  and 
the  offspring  of  primitive  society,  and  there 
fore,  a  fundamental  relation,  natural,  social 
and  civil.  As  defined  by  Rutherforth,  it  "is  a 
contract  between  a  man  and  a  woman,  in  which, 


by  their  mutual  consent,  each  acquires  a  right 
in  the  person  of  the  other  for  the  purposes  of 
their  mutual  happiness,  and  of  the  protection 
and  education  of  children." 

As  it  is  a  spontaneous  union,  for  weal  or  for 


all  bein< 

Reverence  to  God  and  sympathy  for  one  an 
other,  are  natural  emotions  of  mankind;  and 
consequently,  religion  and  benevolence  emi 
nently  distinguish  our  race,  and  point  intelli 
gibly  to  its  duties  and  its  ultimate  destiny.  i  woe,  it  cannot  be  valid  between  the  parties, 

But  there  is  a  more  vital  principle — a  sexual  I  without  the  unconstrained  consent  of  both,  and 
sympathy,  that  pervades  and  vivifies  the  living  j  when  each  A\ras  legally  competent  to  make 
universe — a  more  than  Promethean  lire,  that  j  such  an  alliance.  But,  though  necessarily 
burns  in  the  human  heart,  even  when  not  one  ;  consensual,  and  partaking  of  the  character  of 
spark  of  vestal  light  may  glow  on  the  altar  of  I  a  civil  contract,  it  is  anomalous,  and  in  many 
God.  This  is  the  punctum  saliens  of  being,  of  j  respects,  sui  generis.  The  legal  age  required 
society,  and  of  human  jurisprudence;  aod  its 
first  hallowed  fruit  is  marriage.  The  conjugal 
is  the  natural  condition  of  the  sexes.  The 
bridal  couch  is  prepared,  and  the  nuptial  knot 
is  tied  by  the  hand  of  Omnipotence.  Marriage  is 


for  irrevocable  consent  to  most  commercial 
contract?  is  not  necessary  to  the  validity  of 
marriage,  which  may  be  binding,  if  actually 


consummated,  between  parties  deemed  habiles 
ad  matrimonium,  and    that  is,  according  to  the 

not  only  a  sacred  union;  it  is  also  a  rudimental !  common  law,  when  the  male  is  14  and  the  fe- 
relation,  coeval  with  the  first  pair  on   earth —  )  male  12  years  old.     Marriage,  at  or  after  those 


the  nucleus  of  society — the  parent  of  social 
order  and  civilization — the  guardian  of  house 
hold  purity — and  the  source  of  domestic  chari 
ties  and  joys,  without  which  man  would  be  a 
wandering  savage  and  woman  a  beast  of  burden. 
The  beautiful  and  most  eventful  apologue 
revealed  to  us  concerning  our  first  progenitors, 
illustrates  the  true  object  and  nature  of  the 
virtuous  love  and  pure  conjugal  union  of  man 


ages,  is  neither  void  nor  voidable  on  the  ground 
of  infancy  or  juvenile  indiscretion. 

According  to  the  same  ancient  code,  a  mar 
riage  de  facto,  without  anv  formal  solemnization 
or  proof  of  consummation  than  cohabitation  and 
recognition,  may  be  binding  on  the  parties, 
and  for  most  purposes  as  effectual  as  a  marriage 
dejure.  But  a  mere  agreement  to  marry  in  fu 
ture,  is  not  ipsum  matrimonium;  and  though  a 


and  Avoinan.  It  prescribes,  too,  the  appropri 
ate  sphere  of  husband  and  wife — and,  whilst  it 
shews  that  she  is  "bone  of  his  bone,  and  flesh 
of  his  flesh,"  and  therefore  subordinate,  it  ex 
emplifies  the  fact  of  her  potential  supremacy 
over  his  Avill. 

As  marriage,  holy  though  it  be,  is  also  and 
chiefly  a  social  and  civil  relation,  it  is  subject 

of  course  to  human  as  well  as  divine  law;  and    importance  of  having  well  defined  legal 
few  branches  of  our  jurisprudence  are  more  in- |  and    the    inappreciable  value  of  concec 
teresting  or  important  than  that  which  regulates 
the  matrimonial  state    and    its   consequential 
rights  and  obligations. 

Presuming  that   the  subject  would  interest 
and  amuse  young  men  just  entering  the  thresh- 


legal  obligation  may  result  from  such  a  pros 
pective  stipulation,  fora  breach  of  which  dam 
ages  might  be  recovered,  nevertheless  a  Court 
of  Equity  would  never  compel  a  specific  execu 
tion,  because  coercion  would  frustrate  the  de 
sirable  ends  of  matrimony. 

Contemplating  the  equality  of  the  sexes  sur 
viving  '"the  accidents  of  flood  and  field,"  the 

heirs, 

oncentrated 

affections,  conjugal,  filial,  and  parental — the 
genius  of  our  common  laAV,  like  that  of  Chris 
tianity,  unites  with  the  voice  of  nature  and  the 
suggestions  of  enlightened  policy,  in  denounc 
ing,  as  mcritricious,  any  other  matrimonial 


LECTURE  ON  MARRIAGE  AND  DEVORC1. 


229 


connexion  than  that  of  monogamy;  and  conse 
quently  as  long  as  the  legal  relation  of  husband 
and  wife  shall  continue  to  subsist,  neither  of 
the  parties  to  it  can  lawfully  marry  any  other 
person,  and  any  such  prohibited  marriage  Avill 
be  nullified  by  such  subsisting  pre-contract. 
And  the  same  code  of  law  only  echoes  the 
roice  of  nature,  when  it  declares  that  duress, 
fraud,  mental  imbecility,  and  a  prohibited  de 
gree  of  propinquity  by  blood  or  affinity,  may 
avoid  a  marriage  ab  initio. 

The  legitimate  effects  of  marriage,  and  the 
importance  of  the  various  relative  interests  in 
volved  in  it  and  depending  on  it,  constitute  it 
an  union  for  life,  indissoluble,  according  to 
natural  law,  by  either  party  without  the  con 
sent  of  the  other,  or  without  a  substantial 
breach  by  one,  or  the  concurrence  of  both,  and 
perhaps  not  even  then,  if  they  have  any  child 
to  rear;  and  the  divine  law,  as  now  revealed, 
seems  to  prohibit  a  divorce  even  for  a  breach 


contract,  might  still  be  recognized  ns  valid  by 
our  courts,  if  such  a  marriage  here  would  be 
legal; — for  example,  the  actual  marriage  of  a 
monk  in  Spain,  Avhich  is  prohibited  by  that 
Catholic  sovereignty. 

Such  is  the  international  rule  in  Protestant 
Christendom,  as  to  the  status  of  marriage,  or 
the  marital  condition  of  the  contracting  par 
ties. 

But,  as  to  the  legal  consequences  of  marriage, 
a  different  rule  of  comity  prevails.  The  law 
of  the  contemplated  or  actual  domicil  regulates 
marital  rights  to  moveable  property;  the  law 
of  the  situs  governs  the  same  rights  to  immov 
able  estate;  and  the  law  of  the  habitation 
controls  the  personal  relations  and  obligations 
of  the  parties.  No  other  sovereignty  than 
that  of  the  domicilium  habitationis  can  authorize 


such  a  divorce  as  will  be  deemed  valid 


in  any 


forum  of  that  domicil;  for  it  might  be  as  subver 
sive  of  the  independence  and  conservative  sov- 


of  the  contract  of  marriage;  for,  though  the  j  ereignty  of  a  nation  to  suffer  a  foreign  sov- 
Jewish  Legislator,  (Moses,)  permitted  divor-  |  ereign  to  control  its  domestic  institution  and 


relation  of  marriage,  as  it  would  be  to  permit 
such  foreign  legislation  over  its  terra  Jirma^ 
which  has  never  been  allowed  or  claimed. 
Consequently,  a  divorce  of  the  citizens  of  one 
nation,  granted  by  the  authority  of  any  other 
nation,  may  not  be  admitted  as  valid  in  any 
of  the  domestic  tribunals. 

The  positive  laws  regulating  marriage  and 
denning  the  relative  rights  and  obligations 
resulting  from  it,  differ  essentially  in  different 
countries;|and  in  these  respects,  the  common 
law  of  England,  which  is  substantially  our 
law,  is  materially  variant  from  the  civil  code 
of  Rome,  which  is  the  substratum  of  the  laws 
of  a  great  portion  of  modern  Europe,  and  also  of 
those  of  Louisiana. 

.     0__  _         0 The  common  law  is  less  tolerant  of  divorces, 

s,  valid  where  consumated,  would  neither  j  and  far  less  liberal   to  wives  than  the  code  of 

Justincan. 

Our   Teutonic 

tence  of  the  wife  in  that  of  her  husband;  in 
capacitates  her  to  make  any  contract  or  testa 
mentary  disposition  otherwise  than  in  execu 
tion  of  a  power,  express  or  implied;  gives  to 


ces,  yet  his  more  perfect  successor,  contem 
plating  the  Christian  economy  in  lieu  of  Ju 
daism,  said,  "Whom  God  hath  joined  together, 
let  no  man  put  asunder." 

Marriage  is  moreover,  juris  gentium;  and, 
according  to  a  modern  code  of  international 
comity  recognized  among  most  Christian  na 
tions,  the  lex  loci  contractus  generally  deter 
mines  the  validity  of  this,  as  well  as  of  other 
contracts.  The  degrading  and  injurious  con 
sequences  that  might  obviously  and  frequently 
result  from  any  other  doctrine,  have  at  last 
compelled  proud  England  reluctantly  to  ac 
knowledge  the  validity  of  even  the  stealthy 
marriages  of  h$r  own  subjects,  at  famous 
Gretna  Green,  in  open  violation  of  her  local 
laws.  But  the  recognition  of  all  foreign  mar 
riages 

be  required  by  the  fundamental  principle  of 
comity,  nor  be  consistent  with  its  reason. 


code  merges  the  legal  cxis- 


That  principle,  being  the  offspring  of  the  mu 
tual  interests  of  commercial  nations,  extends 
no  further  than  may  be  useful  for  subserving 
those  interests;  and  is  consequently  this — that 

foreign  laws,  though  not  entitled,  proprio  vigor  e,  j  the  husband  a  harsh  dominion  over  her  person, 
to  extra-territorial  operation,  shall  neverthe 
less  be  deemed  as  ubiquitous  as  the  rights  af 


fected  by  them,  unless  by  giving  them  such 
effect  in  a  particular  nation,  its  institutions,  or 
its  local  policy,  or  the  just  and  preferred  rights 
of  its  own  citizens  might  be  undermined  or 


the  full  exercise  of  which  would  not  be  tolera 
ted  by  the  less  authoritative  but  yet  more 
supreme  law  of  public  sentiment,  in  a  Chris 
tian  society  of  this  enlightened  age.  And,  as 
to  property,  the  same  law  is  also  unequal  and 
apparently  harsh.  It  vests  absolutely  in  the 


jeoparded.     Consequently,  incestuous  mama-  { husband  all  the  moveable  property  possessed 
ges,  incompatible  with  domestic  purity;  polig-  |  bv  his  wife  at   the  time  of  her  intermarriage. 


amy,  or  more  wives  than  one;  and  polyandry, 
or  a  plurality  of  husbands,  even  though  re 
cognized  by  the  law  of  a  foreign  country, 
where  these  unnatural  unions  may  have  been 
first  consummated,  would  not  be  tolerated  in 


and  the  usufruct  of  her  immovable  estate  du 
ring  their  joint  HA'CS,  and  even  after  her  death 
and  as  long  as  he  may  live,  in  the  event  of  his 
survivorship,  the  birth  of  an  heir,  and  the  rc- 


j  duction  of  the  estate  to  his  actual  possession 

this  country  where  they  arc  deemed  pestilent  j  during  the  coverture.     It  gives  to  him  also  all 
and  extensively  mischievous.    And,  consistent-   the  chattels  that  come  to  her  during  the  mar 


ly  with  the  same  conservative  principle  of 
comity,  a  foreign  marriage  unreasonably  de 
clared  void  by  the  local' law  of  the  place  of  the 


riagc;  a  right  to  recover  and  appropriate  to 
his  own  exclusive  use  all  ehoses  in  action 
accruing  after  the  marriage;  and  as  adminis- 


• 
230 


LECTURE  ON  MABRIAGB  AND  DIVORCE. 


trator,  without  liability  to  distribution,  all 
those  also  which  accrued  to  her  before  covert 
ure,  and  had  not  been  reduced  to  possession 
at  her  death. 

But  the  same  law  allows  to  the  wife  nothing 
during  coverture:  and,  in  the  event  of  her  sur 
viving  her  husband,  gives  her,  only  for  life, 
one-third  of  his  real-estate,  and  a  distributive 
share  of  his  personalty  absolutely  after  the 
payment  of  his  debts. 

But  this  very  general  and  imperfect  outline 
would  leave  our  legal  code  subject  to  unjust 
imputation,  unless  we  should  add  to  it  the 
memorable  fact,  creditable  to  English  jurispru 
dence,  that  modern  Equity,  with  a  rational  and 
liberal  spirit,  has  gallantly  interposed  and  cov 
ered  the  helplessness  of  coverture  with  its  pro 
tecting  shield.  By  interweaving  into  the  iron 
web  of  the  ancient  common  law  some  of  the 
softer  and  finer  fibres  of  the  civil  code,  courts 
of  equity  have  greatly  improved  the  texture  of 
the  entire  fabric,  in  many  respects,  and  in  none 


condition  of  married  women.  Equity  recog 
nizes  the  distinct  existence,  and  to  a  limited 
extent,  the  separate  rights  of  wives;  it  permits 
them  to  sue  their  husbands  tor  good  cause,  and 
will  protect  them  against  tyranical  and  cruel 
abuse;  it  will  also  enforce  post-nuptial  con 
tracts;  allows  wives  to  enjoy  and  dispose  of 
separate  property;  and  will  neither  always 
permit  nor  ever  aid  a  husband  to  obtain  the 
possession  of  his  wife's  property,  unless  lie  will 
first  secure  a  competent  maintenance  to  her, 
and  her  children  also,  if  she  have  any. 

And  thus,  next  to  the  Christian  religion. 
Equity  may  justly  claim  the  most  grateful 
tribute  of  wives,  for  the  comparative  elevation 
on  which  they  stand  in  this  land  of  Irnv  and  age 
of  light. 

This  skeleton  of  our  law  on  the  subject  of 
marriage  and  its  incidents  brings  us  to  the  in 
teresting  inquiry — how  is  the  Gordian  knot 
to  be  relaxed  or  cut?  And  the  answeris,  only 
by  death  or  divorce. 

Divorces  are  of  two  classes — first,  divorces 
,v  MKXSA  r.T  mono — -and.  second,  divorces 
A  vrxcri.o  MAAfiMMO.vn.  The  first  is  only  a 
temporary  separation  from  bed  and  board,  still 
leaving  the  parties  in  the  legal  relation  of  hus 
band  and  wife;  the  second  dissolves  the  matri 
monial  tie,  and  places  the  partie.s  or  one  of 
them  in  STATU  QL 


practical  philosophy.  This  species  of  divorce  i? 
granted  here  by  a  court  of  equity  only;  and  tha 
divorce  is  accompanied  by  a  monition  to  the  par 
ties  to  live  chastely,  and  also  leaves  the  door  to 
reconciliation  and  restitution  wide  open.  If  a 
wife  be  thus  separated,  she  is  entitled  to  ALIMO 
NY  or  a  reasonable  annuity  for  her  maintenance. 
And,  presuming  conformity  with  the  decretal 
injunction,  the  law  will,  PRIMA  FACIE,  deern 
illegitimate  all  children  bom  during  the  sepa 
ration. 

Notwithstanding  the  value  of  the  social  in 
tercourse  depending  on  the  stability  of  thi» 
most  important  of  all  the  domestic  relations,  a 
dissolution  of  the  matrimonial  chain  is  author 
ized,  for  some  cause  or  other,  in  all  Christen 
dom,  excepting  only  in  such  portions  of  it  as  have 
established  Catholicism,  which  looks  on  mar 
riage  as  an  inviolable  sacrament,  and  there 
fore  indissoluble  and  intactable  by  human 
authority. 

According  to  our  common  law,  the  canoni- 


i  essentially  than  in  the  melioration  of  the   cal  disabilities  of  consanguinity,    affinity,  and 


anti-uuptual  infirmit},  render  a  marriage  void 
able  only;  and  it  is  nevertheless  good  for  all 
civil  piirposes  until  after  a  sentence  of  nullity, 
which  cannot  be  pronounced  after  the  death  of 
either  of  the  parties.  But  the  civil  disabilities 
of  pre-cxisthu 


want  of  mind. 


marriage,  want  of  age  and 
prevent  a  valid  matrimonial 
contract,  and  therefore  make  it  absolutely 
void.  In  neither  class  of  cases,  however,  can 
a  nullification  of  the  marriage  be  appropriately 
denominated  a  divorce,  which,  in  its  strict 
sense,  is  a  dissolution  of  marriage  valid  and 
binding  between  the  parties  at  the  time  of 
consummation. 

The  laws  of  different  nations  and  ages  have 
also  differed  essentially  as  to  the  prescribed 
causes  for  a  divorce  A  VJNCULO. 

In  the  early  historv  of  Home,  divorces  were 
unknown;  yet,  in  the  most  refined  ages  of  the 
Republic,  either  party  might  renounce  tho 
matrimonial  union  without  any  other  cause 
than  a  wish  to  do  so;  and  even  when,  in  a  later 
age,  the  same  latitude  of  license  was  not  in 
dulged,  a  husband  might  repudiate  his  wife  for 
trifling  and  frivolous  causes,  which  might  often 
occur  in  the  happiest  wedlocks.  JSuch  laxity 
tended  to  the  frustration  of  the  most  cherished 
ends  of  marriage  and  to  the  unhingement  of 
society. 

Antecedently"  to    the 


Fi 


Revolution, 


By  our  law,  the  tir<t  class  of  divorces  are  !  marriage  was  indissoluble  in  France;  but  the 
allowable  for  inexcusable  abandonment,  or  j  volcanic  eruption,  that  inundated  the  instittt- 
fljsriTiA  or  that  kind  of  cruelly  which  e.ndan-  j  tions  and  works  of  ages,  desecrated  the  legal 
gers  life  or  health.  Any  less  degree  of  mis- (union  of  the  sexes;  and  in  27  months,  there 
conduct  or  neglect,  however  tormenting,  will  were  six  thousand  divorces  in  the  single  city 


not  authorize  such  a  divorce,  which  is  deemed 
perilous  to  morals  by  liberating  the  parties  and 
utill  leavintr  "husbands  without  wives,  and 


f  Paris.  And  even  the  Code  of  Napoleon 
allowed  divorces  for  many  causes,  among 
which  was  mutual  and  persevering  consent. 


without    husbands."      "For    relief  from  !      The  Dutch   law  allows   divorce  for  inconti- 


incompatibility  of  taste,  asperity  of  manners, 
acerbity  of  temper,  offensive  habits,  or  oppro 
brious  words,  the  suffering  party  must  draw  on 
the  consolations  of  religion  or  the  fortiude  of 


nence  and  malicious  desertion  onlv.  And,  in 
England,  a  divorce,  A  VINCULO,  is  granted  for 
one  cause  and  by  Parliament  alone.  In  South 
Carolina  no  divorce  hap  ever  been  granted. 


LBCTUEE  ON  MARRIAGE  AND  DIVORCE. 


231 


In  New  York,  Massachusetts,  North  Carolina 
&nd  Illinois,  divorces  may  be  decreed  by  the 
Judiciary  for  one  cause,  and  that  is  the  same 
tor  which  marriage  may  be  dissolved  in  Eng 
land. 

In  Kentucky,  a   statute  of  1809  authorizes 
judicial  divorces  A  VIXCULO  for  several  pre 
scribed  causes.     But  nevertheless,  the  Legis 
lature  has  adopted  a  practice  of  divorcing  for 
those  and  many  other  causes,  by  simple  enact 
ment.    Both  the  policy  and  constitutional  an-  j 
thority  of  this  accustomed  procedure  have  been, 
and  still  are  arraigned  by  many  of  our  most  | 
prudent    countrymen    and     wisest    juriscon 
sults. 

Can  the  policy  be  either  wise,  just,  or  benift- ; 
cent?  Can  such  a  miscellaneous  multitude  as  j 
the  Legislature  of  Kentucky  be  a  suitable  tri 
bunal  for  the  final  decision  of  such  important 
individual  rights  as  those  generally  involved  in 
the  application  for  divorce?  Can  it  be  expec 
ted  that  each  of  the  members  who  acts  and 
votes  will  either  feel  a  proper  degree  of  res 
ponsibility,  or  deliberately  investigate  or  un 
derstand  all  the  facts  of  every  one  of  the  mul 
titude  of  cases  presented  for  legislative  decision, 
at  every  session?  And  moreover,  may  there 
notbe  reason  for  apprehending  that  the  person 
al  solicitude  of  individual  members  to  succeed 
in  particular  cases  confided  to  their  manage 
ment,  might  operate  unjustly  on  other  cases, 
and  mischievously  on  general  legislation?  It 
is  a  fact  that  important  measures  of  general 
concern  have  been  defeated  or  adopted  by  the 
influence  of  those  sympathies  and  combinations. 
And  it  is  a  fact  also  that  divorces  have  often 
been  enacted  without  the  knowledge  of  one  of 
the  parties,  and  sometimes  without  that  of 
either  of  them. 

It  must  be  admitted,  however,  that  our  leg 
islature  have  lately  become  more  judicial  by 
adopting  tbe  practice  of  notifying  the  party 
complained  of,  and  summoning  witnesses. 
But  whether  this  usage  is  adhered  to  in  every 
ease,  or  how  long  it  may  be  continued,  we 
cannot  tell.  We  know,  however,  that  this  extra 
neous  business  impedes  general  legislation,  pro 
tracts  the  sessions,  and  greatly  augments  the 
public  expenditures,  even  to  an  amount  almost 
equal,  every  year,  to  the  united  salaries  of  the 
Avhole  judicial  corps,  who  could,  much  more 
fitly,  perform  the  same  service  without  any  ad 
ditional  compensation. 

Is  it  not  surprising  that  the  constituent  body, 
habitually  so  astute  and  jealous  in  reference  to 
the  treasury  and  the  conduct  oftheir  functiona 
ries,  seem  not  to  hava  been  yet  awakened  on  a 
subject  so  important  to  them,  in  both  a  pru 
dential  and  economical  point  of  view,  as  that 
of  legislatire  divorcing? 

Would  they  not — if  they  would  consider 
this  matter — deem  it  much  better  for  the  Leg 
islature,  by  a  comprehensive  general  enact 
ment,  to  prescribe  all  the  proper  causes  for 
Divorce  and  leave  the  decision  of  each  of  those 
cauie*  to  th«  judiciary,  and  at  the  cost  of  th« 


parties,  as  in  other  individual  controversies? 
But  the  hazard  of  injustice,  and  the  uncertainty 
of  the  matrimonial  tenure  incident  to  the  prac 
tice  of  arbitrary  and  unlimited  legislation  on 
the  subject  of  Divorces,  present  the  strongest 
objection  to  its  policy.  Should  such  vital  in 
terests  and  inestimable  rights  depend  on  the 
ARBITKIUM  of  a  legislative  body  which  cannot 
determine  a  private  right  to  a  horse,  a  cow,  or 
even  a  pig? 

But  the  question  of  power  is  even  more  im 
portant  than  that  of  policy.  Does  the  power, 
as  assumed  and  generally  exercised,  exist? 
This  is  a  grave  question  never  yet  judicially 
settled. 

Those,  who  deny  the  power,  do  so  generally 
on  one  or  both  of  two  grounds.  1  st.  The  con 
stitutional  prohibition  against  the  enactment 
of  any  Statute  "impairing  the  obligation  of 
contracts" — and,  2nd.  The  organic  distribu 
tion  of  all  the  sovereignty  of  our  State  among 
three  co-ordinate  departments,  Legislative, 
Judiciary  and  Executive,  and  the  fundamental 
interdiction  to  the  Legislature  of  any  judicial 
authority  over  private  rights. 

The  first  ground  is,  in  our  apprehension, 
neither  so  comprehensive  nor  so  strong  as  the 
last. 

That  marriage  is  an  obligatory  contract,  ia 
not  now  doubted.  Nor,  consequently,  can 
there  be  any  doubt  that  it  possesses  obligations 
that  might  be  impaired  by  legislation.  But  it 
is  more  than  a  contract — it  is  an  organic  rela 
tion,  on  which  the  prosperity  and  even  the  ex 
istence  of  organized  society  essentially  depend; 
and  therefore,  the  sovereign  authority  of  every 
State,  having  the  inherent  and  inalienable 
right  of  self-preservation,  must  necessarily 
possess,  to  a  conservative  extent,  the  power  to 
control  that  relation,  for  the  public  welfare. 
Hence,  as  the  voluntary  disruption  of  this  do 
mestic  relation  is  deemed  inconsistent  with 
the  interest  of  well-regulated  society,  it  is  not 
allowed  by  our  system  of  jurisprudence;  and 
consequently,  contracts  of  marriage  cannot, 
like  agreements  merely  commercial,  be  dis 
solved  by  the  mutual  consent  of  the  parties. 
On  this  general  ground,  we  were  once  inclined 
to  the  opinion  that  marriage  is  not  such  a 
contract  as  was  contemplated  when  the  consti 
tution  prohibited  legislative  impairment  of 
contracts.  But  subsequent  reflection  has 
shaken,  if  not  changed  that  opinion.  The 
power,  which  certainly  exists  consistently 
with  the  constitution,  of  dissolving  marriage 
for  a  breach  of  any  of  its  obligations  by  either 
party,  may  be  enough  for  all  the  necessary  or 
useful  purposes  of  the  government;  and  if  any 
divorces  have  ever  been  granted  by  our  Legis 
lature  or  Courts,  without  an  actual  or  supposed 
breach  of  obligation,  expressed  or  implied, 
such  cases  have  escaped  our  observation  and 
must  be  rare;  and  although  marriage  is  indis 
soluble  without  the  consent  of  the  sovereign 
authority,  yet,  when  that  consent  is  given,  a 
dissolution  for  a  breach  of  the  contract  cannot 


232 


LECTURE  ON  MARRIAGE  AND  DIVORCE. 


impair,  but  only,  so  far,  enforces  the  obligation 
of  the  contract.  Unless,  therefore,  the  Legis 
lature  should  attempt  to  divorce  man  and  wife 
against  the  consent  of  both,  or  without  any 
delinquency  or  fault  inconsistent  with  the  ob 
ject  or  implied  obligation  of  the  marriage  con 
tract,  the  inquiry,  whether  such  a  contract  is 
protected  by  the  constitution,  would  be  irrele 
vant;  and,  in  the  language  of  Chief-Justice 
Marshall,  (in  the  case  of  Dartmouth  College 
vs.  Woodward,)  we  may  say  that  "when  any 
State  Legislature  shall  "pass  an  act  annulling 
all  marriage  contracts,  or  allowing  either  party 
to  annul  them  without  the  consent  of  the  other,  it 
will  be  time  enough  to  inquire  whether  such  an 
act  be  constitutional." 

But  the  second  objection  is  more  applicable, 
and  may  not  be  so  easily  resisted  or  evaded. 
The  boundary  line  between  the  legislative  and 
the  judicial  iield  is  not  defined  with  a  precision 
either  distinct  or  susceptible  of  absolute  cer 
tainty;  and  the  practice  of  special  legislation 


against  popular  passions  and  delusions,  by  as 
suring  intelligence,  deliberation,  responsibility, 
and  exemption  from  passion  in  the  enactment 
of  laws.  This  theory  is  as  beautiful  as  it  is 
philosophical.  It  is — that,  in  a  popular  gov 
ernment,  the  aggregate  reason  of  the  dominant 
mass  must  be  made  to  prevail  over  its  passions, 
and  reflecting  judgment  over  hasty  impressions, 
occasional  prejudices,  and  temporary  excite 
ments — that  the  will  of  the  majority  would  be 
fluctuating,  uncertain,  and  unsafe  until  it  shall 
have  been  secreted  through  the  constitutional 
organs — and  that,  when  thus  elaborated  and 
rectified,  it  should  be  permitted  to  prevail,  if 
mankind  be  acknowledged  capable  of  self-gov 
ernment.  And,  if  all  the  constitutional  organs 
would  always  perfonn  their  proper  functions, 
as  originally  contemplated,  the  practical  gov 
ernment  would  be  asbenificent  as  the  theoret 
ical  is  provident  and  wise.  But  there  is  R 
class  of  timid  or  deluded  representatives  who 
will  not  maintain  their  constitutional  positions 


for  particular  cases  and  persons  has  increased  — but  surrender  their  own  deliberate  and  in- 
the  difficulty  of  defining  the  legislative  func-  I  structed  opinions  and  echo  the  passions,  preju- 


tion  in  this  country.  But  any  act,  in  any 
form,  which  decides  private  rights  from  facts 
proved  or  assumed,  must  be  judicial,  and  in 
no  sense  legislative;  and  therefore,  if  a  legis- 


dices,  or  inconsiderate  wishes  of  the  constitu 
ent  multitude.  Such  a  course  tends  to  under 
mine  the  constitution  and  frustrate  its  power 
and  ends — and  if  it  should  become  prevalent, 


lature  divorce  a  wife  on  the  ground  of  alleged  j  there  will  be  an  eventful  transition  from  a  reg- 
misconduct  of  the  husband,  they  not  only  de-  i  ulated  and  ballanced  republic  to  an  unregula- 


termine  his  rights,  but  decide  the  alleged  fact, 
and  seem  to  exercise  the  judicial  function. 
Such  an  act  might  be  an  usurpation:  and  there 
fore  void,  unless  the  legislature  have  power  to 
divorce  a  wife  without  either  the  consent  or 
the  fault  of  her  husband.  And  does  this  power 
exist?  Does  that  constitution,  which  guards 
private  property  and  commercial  contracts 
against  legislative  interference,  leave  the 
nxost  important  of  all  social  rights  and  all  its 
incidental  and  consequential  interests  exposed, 
naked  and  helpless,  to  the  tide  of  legislative 
passion  or  caprice?  This  is  a  question  we  are 
not  disposed  now  to  discuss. 

The  stability  and  security  of  democracy 
have  been  assured  by  two  modern  expedients: 
1st,  representation  judiciously  organized  and 
guarded;  and,  2nd,  the  disti-ibution  of  the  three 
great  functions  of  political  sovereignty  among 
as  many  separate  bodies  of  magistracy,  and 
the  delegation  of  the  judicial  function  to  the 
judiciary  department  exclusively. 

If  the  will  of  the  numerical  majority  could 
be  always  deliberate,  calm  and  rational,  it 
ought  always  to  prevail  as  the  ruling  power  of 
a  State;  and,  on  this  hypothesis,  no  fundamen 
tal  restrictions  on  that  will  would  be,  politi 
cally,  cither  necessary  or  proper.  But  this 
theory  can  never  be  safely  exemplified  in  the 
imperfect  state  of  fallen  man;  and  no  rational 
and  prudent  being  would  be  willing  to  confide 
all  his  rights  to  the  unchecked  will  of  a  major 
ity  of  his  fellow  citizens.  The  great  object, 
therefore,  of  all  constitutions  was  to  provide 
checks  on  the  majority.  And  representation, 
M  here  organised,  wta  intended  as  one  security 


ted  and  uncontrollable  democracy — a  transi 
tion  from  a  government  of  intelligence  to  one 
of  passion,  from  a  constitutional  government 
to  the  tyranny  of  faction  and  anarchy.  And 
how  awful  is  the  responsibility  of  those  func 
tionaries  who,  by  such  examples  of  recreance 
and  servility,  are  helping  passion  and  igno 
rance  to  usurp  the  reigns  of  government  from 
reason  and  light  in  whose  hands  our  "Fathers 
placed  them! 

But  there  is  still  another  and  more  hopeful 
safeguard  in  the  constitutional  separation  of  ju 
dicial  from  legislative  power,  and  the  institution 
of  a  chosen  judiciary  selected  for  its  learning 
and  probity,  and  made  sufficiently  independent 
to  feel  unmoved  by  cupidity  or  ambition.  This 
is  the  great  Bulwark  of  stability  and  justice — 
and  without  such  a  fundamental  organization 
there  could  be  no  security.  The  concentra 
tion  of  legislative  and  judicial  power  in  the 
same  hands  would,  as  the  history  of  man 
proves,  be  despotism  in  EMBRYO. 

And,  therefore,  our  partition  Avail  between 
making  the  Jaw  and  applying  it  conclusively 
to  the  facts  of  individual  cases  is  the  most  im 
portant  and  inviolable  structure  of  our  polit 
ical  fabric.  It  is  the  great  Breakwater  con 
structed  and  embedded  by  the  wisdom  of  ages 
to  stay  the  surges  of  the  agitated  ocean.  And, 
as  long  as  it  shall  remain  untouched  by  the 
popular  or  law-giving  hand,  the  humblest  citi 
zen  may  look  unmoved  on  the  foaming  tide 
and  feel  secure.  But  let  this  embankment 
also  be  undermined  or  give  way,  and  then  the. 
flood,  unchecked,  may  soon  inundate  the  land 


LECTURE  ON  MABBIAGE  AND  DIVORCE. 


and  desolate  the  land  we  hold  most  dear — life, 
liberty,  property,  religion — and  all. 

The  friends  of  constitutional  liberty  and 
justice  cannot,  therefore  be  too  jealous  of  the 
assumption  by  the  legislature  of  any  portion  of 
judicial  power.  Let  that  department,  within 
its  allotted  sphere,  prescribe  the  rule  of  con 
duct  and  of  right;  but  never  suffer  it  to  take 

be 


play  conspicuous  parts,  may  possibly  hang  that 
country's  destiny. 

Our  Anglo-American  union  has  organized  a 
great  moral  revolution,  and  is  now,  with  the 
world's  gaze  upon  it,  testing  a  mighty  problem 
for  all  mankind.  The  Mississippi  valley  may 
soon  hold  a  preponderating  authority  in  the 
councils  of  that  union.  In  this  hopeful  valley 
the  educated  and  professional  classes,  and  es- 


And  if  it  be  the  legislative  will  that  it 
may  be  divorced  from  her  husband  for  any 
prescribed  cause,  ought  or  not  the  decisive 


from  anv  freeman  his  chartered  right  to    _„  , 

rried  and  iudged  by  the  constitutional  tribunal  pecially  the  enlightened  in  jurisprudence,  will 
of  impartail  and  eulighted  judgment.  i  possess  a  controlling  power;  and  among  these, 

I  Transylvania's  sons  must  exercise  a  pervading 
e  |  and  perhaps  decisive  influence. 

It  is  on  this  ground  that  we  feel  especially 
the    peculiar  importance  and  momentous  re- 

questiou  whether  the  cause  exists  be  deter-  j  spons;t,ilitv  of  this  law  Department.  Who 
mined  in  the  same  manner  as  all  other  questions  knows  that  it  may  not  bless,  save  or  destroy 
of  fact,  involving  public  mght?  This  is  an  im-  the  hopes?  nQt  of  -this  generation  only,  but  of 
portant  enquiry.  !  unborn  millions?  Will  you,  its  pupils,  all 

Even  the  Parliament  ot  Liigland,  Whose  will  j  gtrive  to  illustrate  its beneficence?    Knowledge, 
H  law,  never,  in  the  plentitude  of  omnivorous  J  fidelitv  vnre  love  of  country,  and  honorable 
»  a   divorce  until  .the  only  fact  ambition  will  be  vour  be 


power,  grants 

upon  which  it  will  dissolve  marriage  has  been 
established  by  a  regular  triftl  and  sentence  in 
an  ordinary  court  of  justice.  And  not  only 
was  this  the  invariable  practice  also  of  Virgi 
nia  prior  to  our  separation  from,  her,  but  Ken>- 
tucky  never  departed  from  it  until  the  year 
1805 — when,  for  the  first  time,  her  legislature 
passed  an  act  perempttmiy  divorcing  a  husband 
from  his  wife. 


ambition  will  be  your  best  armor  in  the  conflict 
for  which  you  are  preparing.  With  these  alone 
you  may  hope  to  be  useful  in  your  day,  and 
expect  to  achieve  virtuous  renown.  Any  other 
panoply  would  be  a  dead  weight  which  might 
crush  you  to  the  level  of  the  vulgar  herd  of 
useless  drone?  or  ephemeral  bustlers. 

Resolve  to  be  useful,  and  the  end  is  almost 
attained.  Correggio,  when  a  boy,  resolved  to 
be  u  distinguished  artist — and  that  instant,  his 


But  our  purpose  here. is  nether  decision  nor  I  fftte  was  sealed<  and  posthumous  fame  

discussion— but  only  general  suggestion  for  cured.  And  it- is  credibly  reported  of  an  emi- 
inciting  reflection  and  researc.i.  And,  there-  { nent  American,  that,  when  taking  final  leave 
fore,  our  allotted  time  being  about  to  expire,  of  collegCj  with  not.hing  but  "poverty  and 
we  will  now  close  the  subject,  by  only  repeat-  tH»  and  a  fixed  resolution  to  become  what 
ing,  that  God  himself  instituted,  marriage  and  he  lux<  aircady  been,  he  said  to  the  President 
declared,  in  the  very  act  of  his  creation,  that  Lf  tlie  institution,  "You  shall,  one  clay,  hear 
•'it  is  not  good  for  man  to  be  alone*"  j  from  [>ANIEL  WEBSTER."  And  now"  Dart- 

Pupils — academic,  medical,  jurisprudential  |  mouth,  like  the  mother  of  Washington,  is  can- 
— all — We  welcome  you  to  the  classic,  halls  of  nonized  by  the  association  of  her  name  with 


Transylvania.  Partially  dismantled  far  years, 
she*  is  now.  nr  hipt,  completely  rigged  and 
manned:  and,  with  nil  her  sails  hoisted  mid 
her  tri -colored  banner  floating ..  in  the  light 
of  an  auspicious  re-dawning,  sLe  launches  on 
a  broad  sea,  with  flattering  hopes  of  surviving 
every  adverse  gale  and  triumphantly  surmount 
ing  every  opposing 'billow.  Though  patched 


that  of  her  illustrious  son.  Will  all  or  any  of 
you,  in  the  votive  spirit  of  the  New  Hampshire 
boy,  resolve,  as  he  once  resolved,  to  illustrate 
the  name  of  this  your  ALMA  MATER?  Shall 
Transylvania  ever  hear  from  you?  And  what 
shall  she  hear?  The  long  line  of  her  distin 
guished  sons  ha*  already  hallowed  her  fame 


and    shed   a    lustre    on 
MAGXA   MATJ-.H   VIIUJJM, 


that,   in   the   infancy  of  the  justly  proud  of  her  jewels.     Wi 
cky's  heroic   age,  gallantly  their  number,  or  will  you  cast  a 


this   western    world. 
Cornelia-like,  she  i? 
Will  you  add  to 
shade  on  her 


and    renovated  from  hull    to  mast,  she   L;  the 

~nme   old  AKGO 

West  and    Kentucky 

bore  aloft  the  "golden  fleece"  of  science.     Em-  i  bright  escutcheon'' 

barked  on   this  long-tried,  good  old  ship,  you  j      May  you  all  contribute  to  swell  the  volume 

need  no  insurance.     She  will  neither  sink  nor  of    her"  fame — may  you    ennoble   your  own 

fail.     May  your   voyage   be    prosperous,  and   names,  and  earn  a  grateful  remembrance  that 

land  you  well  equipped  for  the   rich  harvest  j  shall  never  fade  away.     And,  when  you  come 

that  ripens  before  you  in  this  valley  of  hope.    A   to  take  vour  last  leave  of  these  scholastic  walls, 


better  theater  was  never  prepared  for  the  use- 


may  you,  each  and  all,  make  a  sacramental 


ful  employment  of  honest  talents,  or  the  lion-  i  resolve  that  Transylvania  shall  hear  from  you? 


>rabie  development  of  a  noble  patriotism. 
The  age,  in  which  you  live  to  act,  is  evidently 
most  portentous.  The  country  on  whose 
bosom  providence  has  been  pleased  to  cast 
your  lota,  is  full  of  promise;  and  on  the  event 
ful  drama  in  which  it  may  be  your  fortune  to 
30 


and  when  she  does,  may  the  intelligence  be 
such  as  to  swell  her  venerable  heart  with  n 
mother's  joy. 

Thus,  on" a  subject  full  of  harmony  and  full 
joy,  we  have  commenced  with  "HARMONY,'* 
and  close  with  "JOT." 


PRELECTION. 


LEXINGTON,  Feb.  24th,  1847. 

DEAR  SIR:  At  a  meeting  of  the  Senior  Class  of  the  Transylvania  Law 
School,  the  undersigned  were  appointed  a  Committee  representative  of 
the  wishes  of  the  whole  Class,  who,  through  us,  solicit  for  publication  a 
copy  of  the  able  and  eloquent  Valedictory  Address  delivered  to  our 
Class  last  evening.  Hoping  to  receive  a  favorable  response,  we  have 
the  honor  to  be 

Your  friends  and  obedient  servants, 
DAVID  KERR, 
JOHN  KERR, 
J.  WATSON  BARR, 
WM.  ATWOOD, 
WALTER  C.  WHITAKER, 

Committee, 


LEXINGTON,  February  26th,  1847. 

GENTLEMEN:  The  Valedictory,  of  which  you  so  courteously  request  a 
copy  for  publication,  is  the  substance  of  one  prepared  by  me  for  a  simi 
lar  occasion  ten  years  ago.  It  is — as  it  is — yours. 

And  may  you,  and  those  you  represent,  each  and  all,  carefully  follow 
its  counsels,  exemplify  its  principles,  and  attain  the  destinies  to  which 
they  point,  and,  if  properly  regarded,  will  surely  conduct  you. 

Truly  your  friend, 

GEORGE    ROBERTSON. 
Messrs.  Kerr,  &c.,  &c. 


ADDRESS. 


Gentlemen  of  the  Senior  Class  of  the 

Law  Department  of  Transylvania: 

Our  didatic  course  is  now  finished.  We  as 
perceptors,  and  you  as  pupils,  are  here  together 
for  the  last  time;  and  the  memories  of  the  past, 
and  the  prospects  of  the  future,  now  all  at  once 
clustering  around  our  hearts,  impress  this 
closing  scene  with  an  unusual  pathos  and  so 
lemnity. 

Your  voyage  of  discovery,  though  toilsome, 
has,  we  trust,  been  correspondingly  profitable. 
And  now,  in  sight  of  TKRRA  FIRMA,  it  is  natural 
that  each  of  you  should  feel  some  of  the  emo 
tions  of  Virgil's  voyager,  when — cheered  with 
the  first  glimpse  of  recognized  land,  long 
sought  and  desired  as  his  home — he  cried  out 
ITALIUM!  ITALIUM!  But,  unlike  his  joy,  yours 
is  mixed  with  sorrow — and,  unlike  his  hope, 
yours  is  clouded  with  the  unknown  shadows  of 
uncertain  destinies. 

After  long  and  interesting  associations,  pecu 
liarly  endearing  AVC  shall  all  soon  part — 
where  or  when  to  meet,  or  whether  ever  again 
on  earth,  no  one  knows;  and  where  you  are 
to  land,  and  what  is  to  be  your  doom,  the  un- 
\vritten  page  of  time  to  come  alone  can  tell. 

Having  now  finished  your  scholastic  course, 
you  will  soon  take  leave  of  this  institution,  of 
your  preceptors,  and  of  each  other,  and  enter 
as  men,  each  for  himself  and  in  his  own  strength, 
on  the  sober  and  important  business  of  active 
life,  in  which  your  OAVII  conduct  may  fix  your 
destinies  for  good  or  for  ill,  for  weal  or  for  woe, 
for  time  and  for  eternity. 

Although  our  professional  relations  are  now 
dissolved,  we  feel  it  our  duty  before  we  sepa 
rate,  to  tender  to  you  the  offering  of  our  fare 
well  blessing  and  parting  counsel;  and  this  last 
duty,  resulting  from  our  recent  relations,  is  not 
the  least  difficult  to  us  or  important  to  you. 
In  attempting  to  discharge  it  we  feel  its  pecu 
liar  delicacy  and  responsibility;  and  therefore, 
with  becoming  sensibility  and  solicitude,  we 
invoke  your  candid  consideration  of  the  vale 
dictory  suggestions  which  we  will  proceed  to 
offer  with  all  the  sincerity  and  plainness  of  a 
parting  friend. 

Having  been  under  our  tutilage,  and  bearing 
with  you  our  credentials  our  precepts  and  our 
hopes,  we  feel  a  solicitude,  almost  paternal,  for 
your  future  welfare  and  usefulness.  We  have 
faithftilly  endeavored  by  proper  tuition,  to  en 
lighten  your  minds  with  the  elements  of  juris 
prudence  and  to  prepare  you  for  becoming,  in 
proper  time,  useful  citizens,  sound  jurists  and  en 
lightened  statesmen.  In  all  these  relations  you 


may  be  usefully  and  honorably  distinguished. 
Your  recent  opportunities  and  your  professional 
pretensions,  impose  on  you  peculiar  obliga 
tion  to  your  ALMA  MATER,  to  yourselves,  your 
friends  and  your  country.  Much  will  be  ex 
pected,  much  required  of  you — and  be  assured 
that  all  you  have  and  can  acquire  and  do,  will 
be  necessary  for  the  proper  fulfillment  of  your 
various  duties,  or  the  realization  of  high  and 
honorable  anticipations. 

We  may  presume  that  most,  perhaps  all  of 
you,  are  destined  first  for  the  Bar.  The  sphere 
of  the  popular  and  enlightened  Lawyer  is  very 
comprehensive  and  elevated.  It  embraces  the 
personal,  social,  and  civil  rights  of  his  fellow 
men,  and  all  the  various  and  important  interests 
and  relations  that  depend  on  human  laws.  To 
act  usefully  and  honorably  in  such  a  sphere, 
requires  careful  discipline,  great  knowledge 
and  rare  endowments,  moral  and  intellectual. 
Ministering  at  the  alter  of  Justice,  lawyers 
should  have  clean  hands,  wise  heads,  and 
pure  hearts,  lest  they  profane  the  temple  of 
jurisprudence,  and  sacrifice  the  lives,  the  lib 
erty,  the  property,  and  the  reputation  of  those 
who  repose  on  their  counsel  and  trust  in  their 
protection.  The  welfare  of  society  depends, 
to  a  great  extent,  on  the  character  and  conduct 
of  legal  men.  And,  notwithstanding  the  prev 
alence  of  a  vulgar  prejudice  against  them  as  a 
class,  they  have  an  acknowledged  and  com 
manding  influence,  and  therefore  must  nec 
essarily  do  much  good  or  much  harm.  In  an 
intoductory  discourse  we  made  some  general 
suggestions  once,  respecting  the  eminent  digni 
ty  of  jurisprudence  and  the  high  rank  and  in 
fluence  of  the  gentlemen  of  the  bar;  and  those 
suggestions  have  been  since  coroborated  on  an 
interesting  occasion,  illustrated  with  much  lear 
ning  by  an  eminent  citizen  attached  to  a  rival 
profession,  who,  in  estimating  the  relative  in 
fluence  of  the  various  classes  of  society,  conce 
ded  the  second  place  to  the  lawyers — the  first 
being,  of  course,  allotted  by  him  to  the  fair. 
Such  a  juxtaposition,  if  deserved,  should  be  as 
inspiring  as  it  must  be  grateful  and  honorable. 
But  to  merit  and  maintain  it,  requires  a 
purity  of  purpose,  a  propriety  of  conduct, 
and  a  degree  of  intelligence  which  have  not 
always  characterized  professional  men  of  eve 
ry  denomination;  and  this  is  an  age  of  renova 
tion  and  light;  all  branches  of  knowledge,  and 
all  orders  of  society,  are  in  a  rapid  progress  of 
improvement.  To  maintain  its  high  rank  and 
ensure  a  benificent  influence,  the  western  Bar 
must  be  quickened  by  the  regenerating  spirit  of 


286 


VALEDICTORY  ADDRESS,  DELIVERED 


the  times,  and  must  elevate  the  professional  |  follow  the  safer  guides — reason  and  the  bar- 
standard  and  advance  in  that  knowledge  and  !  mony  of  the  law  in  all  its  parts. 
in  those  virtues  which  will  become  more  and  Whenever  consistent  with  other  and  more 
more  befitting  their  American  character.  To  important  engagements,  make  it  a  rule  to  de- 
be  useful  or  successful  on  the  forensic  arena,  ;  vote  some  portion  of  every  secular  day  to  the 
you  must,  gentlemen,  be  panoplied  with  the  ;  reading  of  law;  and  whenever  you  can,  con - 
annor  of  legal  learning,  literary  taste,  gener-  verse  on  legal  subjects — this  will  tend  to  givo 
al  science,  habitual  prudence,  moral  principle,  i  clear  and  practical  conceptions  of  legal  princi- 
and  practical  wisdom.  A  thorough  knowledge  |  pies,  an  habitual  directness  and  facility 
of  scientific  and  practical  law,  should  be  the  j  in  communicating  what  you  know,  and  a 
leading  object  of  your  professional  ambition  |  taste  for  legal  investigations  which  could  not 
and  pursuit.  otherwise  be  acquired. 

Public  expectation,  the  dignity  of  your  pro-  ;  But  thc  habit  of  intensely  thinking  and  care- 
fession,  the  interests  of  justice,'  and  your  own  jfullJ  writing  on  the  more  abstruse  doctrines  of 
duty  and  fame,  will  demand  the  attainment  of  thc  law  Avlii  bc  Still  more  useful.  Unless  we 
what  you  will  profess  to  have— an  accurate  'meditate  on  what  we  read,  and  see,  and  hear, 
knowledge  of  the  laws  of  your  country  in  all  |until  v;e  rightly  understand  it,  we  can  never 
their  departments  and  relations.  The  want  of  {make  it  our  own,  or  use  it  properly  or  effectu- 
such  knowledge  cannot  be  supplied  by  fidelity,  iallv-  Reading  and  observation  only  supply 
however  undeviatiug;  integrity,  however  scrii-  i  materials  for  meditation;  and  intellectual  ru- 
pulous;  miscellaneous  learning,  however  ex-  jmination  is  to  the  mind  what  mastication  and 
tensive;  or  talents,  however  solid  or  brilliant,  (deglutition  are  to  the  body.  But  it  is  intense 

[thinking  alone  that  can  digest  and  assimilate, 

Do  not  repose  in  confidence,  or  presume  too  hnto  a  congenial  and  vitalizing  essence,  the  ali- 
much  on  the  elementary  knowledge  you  have  mcnt  of  the  mind.  Intensity  of  thought  is  as 
acquired  whilst,  here.  Though  you  have  learned  |  indispensable  to  thc  nutriment  of  the  mind,  as 


much,  you  are  only  initiated  into  the  first  prin 
ciples,  and  prepared  for  the  successful  study  of 
legal  science,  the  most  of  -which  is  to  you,  yet 
a  TERRA  INCOGNITA,  far  beyond  the  range  of 
your  circumscribed  horizon.  You  may  learn 


the  gastric  solvent  and  vascular  labaratory  are 
to  animal  digestion  and  life.  No  man  was  ever 
truly  great  or  useful  who  did  not  think  much 
and  well;  and  many  have  be  en  practically  wi<e 
without  reading  hooks.  Patrick  Henry's  chief 


all   your  lives,  and   the  more  you  learn  the  i  took  was  the  volume  of  nature— but  he  {nought 
more,  you  will  find  to  be  learned.    ^Tp  attain  with  a  peculiar  interest  and  intensity— and  thus. 

the  carver  of  his  own  fortune,  ' 


the  utmost  that  can  be  accomplished,  it  is  im 
portant  to  make  a  judicious  selection  of  books, 
to  read  them  properly,  and  to  make  a  system 
atic  appropriation  of  all  your  time.  It  is  not 
the  number,  but  the  kind  of  books,  and  the 
manner  of  reading  them,  that  will  be  most 
useful.  The  most  scientific  and  approved  edi 
tions  of  elementary  book?  should  be  studied, 
carefully  compared  with  the  cases  to  which 
they  refer,  and  tested,  when  doubtful  or  anom 
alous,  by  principle  and  analogy — and  such  text 


books  as  Blackstone,  Cruise,  and  Kent  should 
be  periodically  reviewed  as  well  as  occasionally 
read.  The  more  important  of  the  adjudged 


became  one 

of  nature's  tallest  noblemen.  But  he  did  not 
know  much  law.  To  have  acquired  that  sci 
ence  it  was  indispensable  that  he  should  have 
read  as  well  as  thought  much.  Proper  reading 
furnishes  food;  right  thinking  digests  it;  and 
careful  writing  and  speaking  rectify  it,  and  cir 
culate  the  vital  product.  Bacon  lias  said — 
"Much  reading  makes  the  full  man,  much  think 
ing  makes  the  correct  man,  and  much  writing 
makes  the  perfect  man/' 


Let  your  miscellaneous  reading  harmonize 
with  your  professional  duties.  Be  careful 
(never  to  indulge  it  to  such  an  extent,  or  in 

cases  should  be  read  carefully  and  compared  sucli  a  manner  as  to  seduce  from  a  proper  al 
and  collated;  and  a  commonplace  manuscript,  j  legiance  to  the  law,  or  generate  ascetic  habit? 
arranged  by  titles,  alphabetically,  would  be  Or  epicurean  appetites,  incompatible  with  the 
both  eminently  useful  by  imprinting  new  doc 
trines  on  the  mind,  and  always  of  great  value 
for  occasional  application.  An  adjudged 


point,  unreasonable  or  inconsistent  with  anal 
ogy  or  principle,  should  not  be  regarded  as 
conclusive  evidence  of  the  law,  unless  it  shall 
have  been  long  acquiesced  in,  or  more  than 


robust  health  and  masculine  vigor  of  the  legal 
mind.  But  general  knowledge  is  as  useful  to 
the  lawyer  as  to  any  other  man.  Whatever 
will  furnish  the  mind  with  light,  or  impart  to 
it  vigor,  health  or  discipline,  must  be  peculiarly 
useful  to  one  whose  professional  avocations  re 
quire,  in  an  eminent  degree,  analysis,  illustra- 


once  affirmed— and  unless,  on  a  surrey  of  all  tion,  and  persuasiveness.  All  branches  of 
material  considerations,  you  feel  that  it  is  bet-  virtuous  knowledge  mutually  aid  each  other. 
ter  to  adhere  to  it,  than,  by  overturning  it,  to  j  The  sciences  arc  united  by  a  common  sympathy. 
produce  uncertainty  and  surprise.  STARE  |  called  by  Cicero  COMMUNE  VIJTCULUM. 

•'"'All  are  but  parts  of  one  stupendous  whole. 


and 

DECIBES  should  be  thus  and  only  thus  under 
stood  and  applied.  Stability  and  uniformity 
require  that  authority,  even  wheij  conflicting 
with  principle,  should  sometimes  decide  what 
thc  law  is.  But,  in  all  questionable 


Whose  body  nature  is,  and  God  the  whole.'' 

All  eminent  jurists  have  been  enlightened 
by  general  learning.  The  example  of  Cicero, 
of  Bacon,  of  Hale,  should  never  bt  forgotten. 


BEFORE  THE  SENIOR  CLASS  OF  TRANSYLVANIA. 


2S7 


Cicero  was  one  of  the  most  profound  philoso- !  Be  carefuVnever  to  pause  in  your  pursuit  after 
phers  and  polished  scholars  of  erudite  Rome; !  useful  information.  The  mind  cannot  remain 
Bacon's  great  mind  was  enlarged  and  liberal-  i  stationary — if  it  make  no  advance,  it  must  ret- 
ized  by  universal  science;  and  Hale,  among  the? :  rograde;  nor  can  morals  stand  still — and  as 
most  learned  of  his  day,  and  a  Christian  too,  j  nothing  can  contribute  so  much  to  your  dignity, 
was,  according  to  Runnington,  of  the  opinion  j  influence  and  happiness,  as  the  activity  and 
that  "no  man  could  be  master  of  any  profession,  (improvement  of  your  own  moral  faculties, 


without  having  some  skill  in  all  the  sciences." 
This  infallible  truth  has  not  been  universally 
felt.  But  we  have  sonic  reason  for  hoping  that 
a  more  propitious  era  has  come,  or  is  coming, 
when  all,  who  feel  true  professional  pride  or 


therefore,  if  you  wish  to  be  happy  or  useful — 
if  you  hope  to  be  gratefully  remembered 
among  men,  and  to  be  ranked  with  the  good 
and  great  of  your  species,  bo  ever  mindful  that 
God  has  identified  your  peace  and  your  honor, 


have  a  just  sense  of  professional  dignity  and  j  your  duty  and  your  usefulness,  with  intellectual 
obligation,  will  know  that  general  science  can- (activity  and  moral  purity  and  light.  Never 
not  be  neglected  without  great  danger  of  abor-  |  neglect  the  map  of  nature  always  unrolled  be- 
tion  and  degradation.  Civil  history,  mathe-  j  fore  you — nor  the  sacred  volume  of  revealed 
inatics,  philology,  geography,  moral,  political,  j  truth,  in  which,  when  properly  studied,  true 
and  physical  philosophy,  and  medical  jurispru-  and  practical  wisdom,  elsewhere  imattainable, 
dence,  may  be  deemed  essential;  and  polite  will  certainly  be  found;  and  remember  that 
literature  and  some  acquaintance  with  the  I  whenever  true '"Science  builds  a  monument  to 
fine  arts  will  be  highly  ornamental  and  useful,  i  herself,  she  erects  an  altar  to  God." 
Without  some  acquaintance  with  these  various  j  But  do  not  read  more  than  you  can  under- 
branches  of  knowledge,  the  lawyer  must  enter  stand,  nor  oppress  the  mind  or  impair  thcjhealth 


the  arena  unarmed,  or  armed  only  with  the 
rough  and  unwrought  club  of  dry,  hard,  tech 
nical  law.  Medical  jurisprudence  has  been  too 
generally  neglected.  Every  lawyer  should  ac 
quire  some  general  and  correct  knowledge  of 
anatomy,  human  and  comparative;  of  physiolo- 


and  vigor  of  the  body  by  excessive  or  indiscreet 
study.  The  studious  mind  requires  occasional 
relaxation  and  relief.  Let  these  be  judiciously 
afforded  by  physical  exercise  and  interludes  of 
innocent  and  improving  amusements.  But 
never  suffer  the  mind  to  become  rustv  from  in- 


gy;  of  chemistry;  of  materia  medica;  and  pa-  j  dolence,  to  be  seduced  by  the  allurements  of 
thology.  An  accurate  and  practical  acquaint-  I  vice,  corrupted  by  sensuality,  or  unhinged  by 
ance  with  the  purity  and  power  of  your  ver-  j  vacuity.  Dr.  Johnson's  expedient  for  prevent- 


nacular  tongue  should  be  deemed  a  SINE  QUA 
XON  .  And  such  an  attainment  implies  no  small 
degree  of  literary  taste  and  study,  as  well  as 
much  attention  and  habit.  In  fine,  it  is  impor 
tant  that  a  lawyer  should  learn  all  that  it  is 
useful  for  man  to  know.  And  the  more  he 
learns,  the  more  he  will  be  able  and  inclined 
to  learn,  and  the  more  humble  and  less  dog 
matic  and  pedantic  will  ho  be,  and  seem  to  be. 
There  is  no  danger  that  you  can  know  too 
much.  Whilst  the  moral  and  physical  universe 
is  around  you,  your  minds  can  never  be  inac- 
active,  full,  or  satisfied.  The  higher  you  as 
cend  the  topless  mountain  of  knowledge,  the 
clearer  will  be  your  horizon;  but,  should  you 
climb  to  where  no  mortal  footstep  has  ever 
been,  you  will  then  be  but  the  more  sensible  to 
the  evidence  of  your  own  inferiority  and  igno 
rance,  when,  from  your  peerless  eminence,  for 
the  first  time,  the  interminable  wilderness  of 
unexplored  knowledge,  indistinctly  opened  to 
your  enlarged  vision,  will  appear  as  a  world, 
contrasted  with  the  little  spot  which,  in  a  life 
time  of  toil,  you  had  belted  and  enclosed  as 
your  intellectual  domain,  and  which,  so  insig 
nificant  in  your  more  comprehensive  eye,  seems 
to  the  microscopic  vision  of  those  below  you 
to  be  the  >TE  PLUS  ULTRA  of  human  attainment. 
A  judicious  distribution  of  your  employments, 
and  a  systematic  allotment  of  your  time  will 
afford  you  leisure  for  every  reasonable  purpose 
and  enable  you  to  acquire  a  mass  and  a  kind  of 
knowledge  which  can  be  attained  by  no  other 
menns. 


ing  Hypocondria  was — never  to  be  alone  when 
idle,  nor  idle  when  alone;  and  it  is  worth  being 
remembered  and  tried.  Physical  exercise,  lit 
erary  companionship,  and  moral  conversation 
will  be  sure  antidotes  to  gloom  and  cynicism; 
and  music,  Luther's  intellectual  Catholicon — 
next  to  the  Bible  in  his  judgment,  as  an  adver 
sary  of  the  devil — should  not  be  derided  or  un 
dervalued.  It  exhileratcs  and  tranquilizes  the 
mind,  elevates  and  purifies  the  heart,  and  thus 
contributes  much  of  what  scarcely  any  other 
amusement  can,  as  innocently,  contribute  to 
improvement  and  happiness.  Nor  are  gymnas 
tic  and  other  athletic  exercises,  for  health  or 
amusement,  either  useless  or  incompatible 
with  personal  dignity  or  intellectual  eminence. 
They  not  only  tend  to  impart  vigor  and  health 
to  the  body,  elasticity  and  tone  to  the  mind,  and 
simplicity  to  the  moral  character,  but,  when 
properly  regulated,  they  render  us  more  amia 
ble  and  useful.  Behold  Professor  Playfair, 
when  a  septegenairc,  with  the  spring  and  mus 
cle  of  manhood,  leaping  with  the  young  ath 
letes  of  Edingburg — Alexander  Hamilton, 
playing  marbles  with  his  little  children — Pat 
rick  Henry  tumbling  with  his  household  Gods, 
and  playing  the  fiddle  for  them  to  dance — and 
a  Chief  Justice  Marshall,  throwing  aside  the 
TOGA  PRETEXTA,  and  as  a  youth,  CON  AMORE, 
pitching  quoits  with  the  young  men  of  Rich 
mond.  These  and  many  others  of  the  distin 
guished  great  men  were  exemplars  of  the  sim 
ple  dignity,  amiable  condescension,  and  prac 
tical  utility  of  tru*  wiisdoni.  Knowledge,  to 


238 


VALEDICTOR  Y  ADDRESS,  DELIVERED 


be  most  useful,  must  be  communicative,  unaf- !  joy  unspeakable  and  full  of  glory"— and  re 
fected  and  benevolent.     Such  knowledge  illus-  !  member, 

trates  the  social  and  civic  virtues,  and  is  equally  |  "The  path  of  sorrow  and  that  path  alone, 
opposed  to  haughtiness,  to  artificial  dignity,  to  j  Leads  to  the  land  where  sorrow  is  unknown.1' 
incivism,   and   to  misanthropy.      The  honest     •,.;.. 
face  of  virtuous  nature,  always  attractive— if      In  discharging  the  various  duties  incident 


distorted  or  disguised  by  ignorance  or  false 
pride,  is  metamorphosed  into  corsitted,  cadav 
erous,  repulsive  art.  A  virtuous  and  enlight 
ened  mind,  necessarily  unaffected,  humble  and 
cheerful,  will,  like  the  sun,  shed  its  vivifying 
light  around  the  young  and  the  old,  the  rich 
and  the  poor,  the  lowly  and  the  exalted;  and, 
by  acting  in  harmony  with  chaste  nature's 
laws,  will  refresh  and  edify  wherever  there  is 
any  sympathy  with  its  cheering  influence.  Generalship. 

This  is  nature  unmocked— dignity  uueclipsed.  [  must  have  these  and  more.  He  must  have  a 
Appollo  should  sometimes  play  on  his  lyre,  and  I  profound  knowledge  of  law,  an  acquaintance 
Hercules  with  his  distaff.  That  is  a  false  and  with  general  science  and  polite  litei  ature — in 
tegrity  of  principle  and  of  character,  and  a  pe- 
cuiiarjaculty  of  speech.  Nothing  is  more  dif- 


to  your  profession,  you  will  find  use  for  all 
human  knowledge  and  moral  power.  Sallust 
doubted  whether  a  higher  order  of  talents  and 
attainments  was  not  necessary  to  make  a  good 
historian  than  an  able  General.  But  can  there 
be  any  doubt  that  the  beau  ideal  of  an  eminent 
lawyer  requires  more  knowledge  and  moral 
power,  than  what  might  be  sufficient  to  make 
an  able  General?  Prudence,  sagacity,  decis 


ion,  courage- 


are  the  chief  attributes  of  able 
The    able   and  honest   lawyer 


pernicious  dignity  which  chills  the  warm  emo 
tions  of  the  heart  or  hushes  the  soft  accents  of 
nature's  voice.  Achilles  was  never  so  attract 
ively  interesting  as  when  agonizing  in  the  dust 
for  the  death  of  Patrocles;  nor  did  the  aged 
Priam  ever  appear  so  amiable,  as  when,  with 
trembling  frame  and  streaming  eyes,  he  begged 
the  lifeless  body  of  his  son  Hector.  These 
were  nature's  doings,  and  among  her  proudest 
achievements;  exhibiting,  in  the  one  case,  the 
most  impetuous  of  heroes  tamed  and  subdued 
by  the  tenderness  of  a  holy  friendship,  and,  in 
the  other,  the  majesty  of  a  King  mildly  mingled 

i  ou  re-  j  become*'a  respectable'  lawyer,  and 


ficult  or  interesting,  or  requires  more  variety 
of  attainments,  or  greater  compass  or  power 
of  mind  than  a  forensic  argument,  in  a  great 
and  difficult  cause,  addressed  to  the  reason, 
the  hearts,  and  the  passions  of  men  in  behalf 
of  truth  obscured  by  sophistry,  justice  op 
pressed  by  power,  or  innocence  persecuted  bv 
malice  and  i'alsehood.  In  such  a  cause,  all 
that  is  most  good  and  great  in  moral  power 
may  be  necessary  and  will  ever  be  most  useful. 


A    man 


f  the  ordinary  grade  of  intellect 
and  fidelity, 


member  the  stern  and  towering  Pyrrhus — being 
rebuked  for  the  unstoical  weakness  of  shedding 
tears  for  the  death  of  his  wife,  and  urged  to 
assume  the  aspect  of  a  Philosopher  unmoved, 
he  exclaimed — "Oh,  Philosophy!  yesterday 
thou  commandest  me  to  love  my  wife — to-day 
thou  forbiddest  me  to  lament  for  her!"  And 
being  told  that  tears  could  not  restore  her,  he 
replied — "Alas!  that  reflection  only  makes 
them  flow  faster." 

The  reasonable  indulgence  of  the  affectoins 
and  emotions  of  the  heart  is  not  only  happying 
but  meliorating,  and  is  one  of  nature's  expedi 
ents  for  civilizing  mankind  and  saving  them 
from  selfishness  and  vice.  The  most  wise  and 
honored  should  always  act  as  rational  men, 
and  never  rebel  against  Heaven,  or  commit 
treason  against  nature,  by  attempting  to  des 
troy  or  to  conceal  those  emotions  which  belong 
to  the  wisest  and  best  of  men  for  the  wiset 


et  along" 


and   best  of    ends.      Let 
joyed   and  acted  out  in  a 


them  then  be  en 
becoming   manner 


by  the  most  exalted  of  our  race,  as  long  aa 
they  wish  to  be  considered  as  men.  Such  a 
rou'rse  secures  the  intellectual  Sun  from  eclipse, 
disrobes  knowledge  of  the  cold  and  mystic 
cloud  of  pride  and  hypocrisy,  and  presents  it  in 
all  the  simplicity  and  radiance  of  its  native 
grace  and  intrinsic  loveliness.  He  who  never 
?eems  to  feel,  either  never  feels  at  all,  or  as 
man  ought  to  feel;  and  others  will  never  feel 
much  affection  or  respect  for  him.  But  in  the 
ten4«r  iympathiei  of  pur»  hearts,  ther«  it  "a 


in  his  profession.  But  talents  the  most  ex 
alted — knowledge,  most  profound  and  various; 
industry,  most  regular;  honor,  most  chival 
rous,  and  integrity,  most  pure  and  inflexible, 
must  all  be  combined  in  him  who  is  eminent 
ly  distinguished  for  forensic  ability. 
"  Talents,  however  bright — knowledge,  how 
ever  great — will  be  unavailing  or  pernicious, 


without  habitual    industry, 
dence,    and    perfect  honor. 


systematic  pru- 
What    Johnson 


said  of  Savage, 
universally  tru 


and    Butler    of  Sheridan,  is 
Those  who,  in  confidence 
the  common 


of  superior  capacities,  disregard 
maxims  of  life,  will  be  reminded  that  nothing 
will  supply  the  want  of  prudence,  and  that 
negligence  and  irregularity  long  continued, 
will  make  knowledge  useless,  wit  ridiculous, 
and  genius  contemptible."  No  lawyer,  who 
neglects  that  maxim,  can  be  true  to  his  clients, 
to  his  own  fame,  or  to  the  dignity  of  his  pro 
fession.  And  here  we  deem  it  not  inappropri 
ate  to  invite  your  attention  to  the  importance 
of  a  peculiar  propriety  in  personal  and  pro 
fessional  deportment;  and  also,  to  the  necessi 
ty  of,  -what  may  be  termed,  forensic  ethics. 

1st.  A  lawyer  should  be  a  gentleman  in  his 
principles,  his  habits,  and  his  deportment;  in 
fine,  a  gentleman  in  the  sterling  import  of  the 
term — else  he  brings  degradation  on  himself, 
and  helps  to  reflect  discredit  on  the  profes 
sion.  And  to  be  a  gentleman  in  the  true  and 
perfect  sense,  is  to  be — what  is  too  rare — a 
man  of  sound  principles,  scrupulous  honor. 
i becoming  modesty,  active  benavolenc*,  ha- 


BEFORE  THE  SENIOR  CLASS  OF  TEANSTLVANIA. 


559 


bitual  morality,  and  rational,  just,  and  polite 
deportment. 

2d.  In  his  intercourse  with  his  client*,  he 
should  be  candid,  respectful,  patient,  liberal 
and  just.  He  should  never  advise  a  suit  un 
less  it  is  the  interest  of  his  client  to  "go  to 
law."  If  the  case  be  frivolous,  or  the  right 
doubtful,  he  should  advise  forbearance  or  com 
promise.  He  should  never  encourage  litiga 
tion.  When  a  suit  becomes  necessary,  or  is 
pending,  his  fee  should  be  regulated  by  the 
value  of  his  services  and  the  client's  ability 
conveniently  to  pay.  An  honest  man  •will 
never  barter  his  conscience,  nor  will  an  hon 
est  lawyer  ever  speculate  on  the  ignorance, 
the  fears,  or  the  passions  of  his  confiding  cli 
ents.  A  faithful  lawyer  will  never  deceive 
his  client  nor  neglect  his  business.  It  is  his 
duty,  and  his  interest  too,  to  deal  in  perfect 
candor,  and  to  do,  in  the  preparation  of  his 
client's  cause,  all  that  he  ought  to  do;  and 
that  is,  all  that  he  can  do  consistently  with  per 
sonal  honor  or  professional  propriety.  If,  in 
consequence  of  his  negligence,  misdirection, 
or  unskillfulness,  his  client's  claim  unjustly  or 
improperly  fail,  he  should  indemnify  him 
fully,  promptly,  and  cheerfully.  He  should 
never  attempt  success  by  any  other  than  fair, 
honorable,  and  legal  means;  nor  should  he  ad 
vise  or  connive  at  the  employment  of  any  other 
means  by  his  client.  He  is  not  bound  by  any 
obligation  to  the  dignity  of  his  profession  to 
abandon  his  client's  cause,  merely  because  he 
may  discover  that  he  is  on  the  wrong  side; 
for  he  might  be  mistaken  in  his  opinion,  and 
might  do  great  injustice  by  turning  against 
his  client.  And  also,  it  is  his  duty,  whether 
in  a  good  or  bad  cause,  on  the  wrong  side  or 
the  right,  to  present,  in  as  imposing  a  manner 
as  fair  argument  can  exhibit,  the  stronger  or 
more  plausible  points  in  his  client's  behalf, 
without  expressing  an  uncandid  opinion.  In 
no  case  should  he  ever  express,  as  his  opin 
ion,  any  thing  but  his  opinion.  To  do  f?o 
would  not  only  be  inconsistent  with  the  pro 
priety  of  his  profession,  but  would  surely  im 
pair  his  influence,  subtract  from  his  reputa 
tion,  and  render  it  altogether  uncertain  when 
he  thinks  what  he  say*?. 

3d.  Towards  the  court  he  should  be  respect 
ful  and  modest,  but  firm  and  candid;  and  he 
should  never  endeavor  to  elude  his  own  respon 
sibility,  by  attempting  to  throw  it  unjustly  on 
the  court.  This  artifice  is  but  too  common. 
It  is,  however,  not  only  disingenious,  but  dis 
creditable  and  disadvantageous;  because  it 
is  dishonorable,  and  tends  to  disparage  the 
the  courts  of  justice,  in  which  public  confi 
dence  is  indispensable  to  a  satisfactory  ad 
ministration  oAhe  laws. 

4th.  In  his  intercourse  with  his  profession 
al  brethren,  he  should  be  courteous,  just,  and 
honorable.  He  should  repudiate  all  dissimu 
lation  and  low  cunning,  and  all  those  common 
place  and  humiliating  artifices  of  little  minds, 
which  constitute  chicanery.  He  should  de 
sire  only  an  honorable  victory;  such  as  may 
be  won  by  fair  means  and  fair  arguments,  if 
ho  beat  his  antagonist  by  superior  arguments 


!  or  superior  knowledge,  his  success  It  credite- 
j  ble;  but  if  he  beat  him  in  cunning,  fraud  or 
j  trickery,  he  degrades  himself,  prostitutes  his 
i  privileges,  and  outrages  forensic  dignity  and 
propriety.  Such  vulgar  game  is  beneath  the 
i  pride,  and  revolting  to  the  honor  of  lofty  intel- 
4ect.  It  is  the  offspring  of  moral  infirmity, 
1  and  is,  almost  always,  proof  of  a  diminutive 
i  mind. 

5th.  A  lawyer  can  hardly  be  both  inerce- 
inary  and  just.  An  inordinate  appetite  for 
'gain,  is  apt  to  seek  gratification  in  spoliation, 
j  fraud  and  oppression,  and  is  generally  the 
companion  of  a  cold  and  calculating  selfish- 
I  ness;  irreconcilable  with  the  most  attractive 
and  useful  of  the  personal,  social  and  civic  vir 
tues.  Avarice  is  also  undignified  and  unrea 
sonable.  He,  who  is  not  content  with  a  com 
petence  for  independence  and  rational  enjoy 
ment,  has  a  morbid  appetite  which  this  world 
can  never  satiate — because  it  craves  to  hoard 
and  not  to  enjoy.  More  than  a  competency  is 
not  necessary  for  happiness,  and  is  but  ael- 
dom  consistent  with  it. 
"Reason's  whole  pleasure,  all  the  joys  of 

sense, 

Lie  in  three  words — health,  peace  and  compe 
tence." 

And  the  book  of  books  t«lls  us,  that  it  is  al 
most  impossible  for  a  very  rich  man  to  reach, 
or,  if  he  could  reach,  to  enjoy  heaven;  because 
he  is  almost  sure  to  be  sordid,  and  to  look  on 
ephemeral,  earthly  possessions,  as  his  sum- 
mum  bonum,  or  supreme  good.  It  is  almost  as 
difficult  for  a  rich  man  ever  to  become  a  great 
lawyer.  There  are  but  few  who  can  be  stimu 
lated  by  ambition  or  taste  alone,  to  encounter 
the  toil  and  vexation,  the  sleepless  nights  and 
anxious  days,  which  must  be  the  price  of  fo 
rensic  trninence.  And  he  who  desires  that 
his  last  moments  on  earth  shall  be  gilded 
with  a  firm  assurance  that  his  children, 
whom  he  has  pledged  as  hostages  to  posteri 
ty,  shall  be  useful  and  honorable  in  their 
day,  should  not  be  solicitous  to  lay  up  for 
them,  more  of  this  world's  goods,  than  barely 
enough  to  enable  them  to  give  to  their  moral 
and  physical  powers  proper  means  of  employ 
ment  and  development.  Why  then  should 
we  court  an  empty  and  delusive  shadow? 
Worse — an  ignis  fatuus,  that  too  often  lures 
from  the  straight  and  open  path  of  virtue  and 
happiness?  for  we  know  how  few  there  are, 
or  ever  have  been,  who  dedicate  their  surplus 
wealth  to  its  onlj  useful  and  proper  end — be 
neficence,  i 
6th.  But  it  is  the  duty  of  every  man  to  en 
deavor  honestly  to  acquire  and  retain  the 
means  of  a  proper  independence.  Industry 
and  economy  are  therefore  social  virtues — and 
the  lawyer,  as  well  as  any  other  person,  should 
be  paid  adequately  for"  his  useful  services. 
But  this  should  be  with  him  a  secondary  ob 
ject.  A  proper  administration  of  the  laws, 
usefulness  to  his  countrymen,  and  his  own 
fame,  should  be  the  prime  and  controlling 
motives  of  his  professional  labors  and  ambi 
tion. 


240 


VALEDICTORY  ADDRESS,  DELIVERED 


Concurring  altogether  in  its  truth,  and 
deeming  it  here  appropriate,  wo  commend  to 
your  approving  consideration  nnd  abiding  re 
membrance,  amendment  of  the  open-hearted 
and  gifted  Burns: 

"lo  catch  dame  fortune's  golden  smile, 
Assiduous  wait  upon  her, 

And  gather  gear  by  erery  wile 
That's  justified  by  honor. 

But  not  to  hide  it  in'a  hedge, 
jSTor  for  a  train  attendant, 

But  for  the  glorious  privilege 
Of  being  ix DEPENDENT." 

7th.  It  is  also  very  important  thar  you 
should  be  able  to  communicate  effectually 
what  you  know  and  feel.  And  to  possess 
this  eminent  faculty,  it  is  necessary  that  you 
should  understand  and  feel  your  subject,  and 
have  an  articulate  and  well-modulated  voice, 
appropriate  action  and  a  pure  and  felicitous 
*tyle.  No  speaker  can  be  understood,  who 
does  not  himself  understand  his  .subject,  nor 
make  others  feel  what  he  does  not  himself 
feel.  Others  will  never  be  enlightened  by  the 
mind  of  him  who  has  no  light,  or  moved  by 
the  tongue  of  him  whose  own  heart  i.s  un 
moved.  Eloquence  is  the  Yoice  of  truth  and 
of  nature.  It  springs  from  the  head  and  the 
heart — a  clear  head  and  a  benevolent  heart, 
are  the  living  fountains,  without  which.  110 
limpid  stream  of  eloquence  will  ever  flow. 
Xothingcau  supply  the  want  of  good  thoughts 
rightly  felt.  The  stammer  of  Demosthenes 
and  the  wart  of  Cicero  can  never  help  a  tur 
bid  brain  or  a  callous  heart — nor  can  all  the 
"contortions  of  the  sybil"  enlighten  the  head  or 
move  the  heart  without  her  "inspiration." 
But  a  good  manner  and  appropriate  style  im 
part  to  good  thoughts  their  true  grace  and  full 
effect,  and  are  therefore  important. 

Every  speaker's  manner  should  bo  his  own. 
A  natural  manner  i.s  the  only  good  one.  The 
attitudes,  expressions  and  intonations  of  na 
ture  may  be  improved  by  judicious  art,  but 
never  by  servile  imitation.  The  voice,  espe 
cially,  may  be  wonderfully  improved  in  dis 
tinctness,  melody  and  power — but  with  all  the 
improvement  of  which  it  may  be  susceptible, 
it  should  still  be  natural.  Mimicry  is  un 
seemly  and  ridiculous,  and  many  a  public 
speaker  has  been  spoiled  bv  attempting  to 
follow  some  popular  model. 

Language,  being  the  dress  of  thought,  should 
be  chaste  and  appropriate.  The  principal  de 
fects  in  Western  elocution,  and  especially  at 
the  bar,  arc  verbosity  and  vociferation — too 
many  words,  and  too  much  noise.  Our  foren 
sic  style  is  generally  too  copisus — and  of  most 
of  our  best  speakers,  the  remark  applied  to 
Gibbon  mi<£iit,  with  more  propriety  be  made — 
"the  thread  of  his  verbosity  is;  (sometime*]) 
drawn  out  too  fine  for  the  staple  of  bis  argu 
ment."  The  style  nhould  be  adapted  to  the 
subject  and  the  occasion,  and  should  always  be 
pure  and  clear.  This  is  the  only  safe  or  uner 
ring  rule.  A  speaker  should  never  bawl  or 
Kcream.  Hia  intonation  should  be  regulated 
by  the  subject  and  ths  natural  volume  of  hi» 
voice,  but  in  such  manner  as  not  to  b«  disa 


greeable  or  unintelligible;  and  it  is     always 

very  important    that    it    should   be  distinct 

and  audible.    More  words  than  are  necessary 

1  to   express  the  idea  or  emotion,  just  as  it  is  in 

j  the  head  or  heart  of  the  speaker,  should  not  be 

:  employed — 

"Words  are  like  leaves,  and  where  they  much 

abound, 
Sound  fruit  or  solid  sense  is  seldom  found." 

The  true  orator  is  never  arrogant,  presump 
tuous,  pedantic  or   theatrical.     Eloquence  is 
well  personified  by.  Homer  in  his  delineation 
I  of  the  style  and  manner  of  Ulysses: 
"When    Atreus'  son  harangued  the  listening 

train. 

Just  was  his  sense,  and  his  expression  plain; 
His  words  succinct,  yet  full  without  a  fault — 
He  spoke  no  more  than  just  the  thing  he 

thought. 

j  But.  when  Ulysses  rose  in  thought  profound, 
|  His  modest  eyes  he  fixed  upon  the  ground 
!  As  one  unskilled, or  dumb,  he  seemed  to  stand, 
I  Nor  raised  his  head,  nor  stretched  his  ?cepter- 

cd  hand. 

But  when  he  speaks,  what,  elocution  flows. 
Soft  as  the  fleeces  of  descending  snows, 
The  copious  accents  fall  with  easy  ait, 
Melting,  they  fall,  and  sink  into  the  heart. 
Wondering,  we  hear,  and  fixed  in  deep  sur 
prise. 
!  Our  ears  refute  the  censure  of  our  eyes." 

Here  was  no  foaming  or  thundering — no  re- 
j  dundance — no  affectation— no  visible  artifice — 
j  no  unnatuial  drapery;  but  all  was  naked 
i  thought  and  feeling,  presented  in  chaste  na- 
[ture's  simple  dress.  Such  is  eloquence,  and 
1  such,  in  a  great  degree,  was  that  of  the  great 
popular  orator  of  America — Patrick  Henry — 
who,  had  he  possessed  the  literary  advantages 
J  and  habits  of  reading  with  which  some  men 
I  have  been  blessed,  would,  doubtless,  have 
(been  the  most  perfect  model  of  human  elo 
quence. 

Yrritten  or  committed  speeches  are  danger 
ous  things  to  lawyers.  Understand  your  sub 
ject  thoroughly,  and  trust  to  the  inspiration  of 
j  the  moment — nature  will  then  do  more  for  you, 
as  to  manner,  than  nil  the  elaborate  prepara 
tion  of  the  closet. 

8th.  But  the  nature  of  forensic  controversy 
requires  that  lawyers  should  possess  a  pecu 
liar  kind  and  eminent  degree,  not  only  of 
knowledge  and  persuasive  elocution,  but  of 
dialectical  skill.  We  do  not  mean  the  verbal 
sophistry  of  the  schools,  nor  that  vulgar  habit 
of  weak  and  skeptical  minds,  of  arguing  an 
.plausibly  on  the  wrong  as  on  the  right  side; 
|  but  vro  allude  to  that  faculty  possessed  only 
bv  a  gifted  few,  of  presenting  the  strongest 
j  ideas  in  their  utmost  force — of  exhibiting  the 
I  wholtj  truth  in  its  fullest  effulgence— or  of 
throwing  over  it,  when  expedient,  the  great 
est  obscuration. 

Thucydides  said  of  Pericles,  as  proof  of  hit* 
almost  superhuman  power  and  dexterity  of 
argumentation — "when  1  have  got  him  down, 
he  cries  out  he  is  not  vanquished  and  persuade* 
every  body  to  believe  him."  This  wonderful  do. 


BEFORE  THE  SENIOR  CLASS  OF  TRANSYLVANIA. 


241 


bater  did  not  resort  to  the  shallow  artifices  of 
the  pedantic  quibbler  described  by  Hudribas: 
Who  could  "on  either  side  dispute, 
Refute,  change  sides,  and  still  refute — ' 
but  his  resources  were  those  of  a  mind  that 
could  perceive  most  clearly — a  heart  that 
could  feel  most  keenly — and  a  tongue  that 
could  speak  most  seductively  all  that  he  saw, 
and  thought,  and  felt.  Common  sense  was 
his  magic  wand.  It  was  also  Patrick  Henry's 
great  lever.  This — the  soul  and  end  of  all 
knowledge — cannot  be  acquired  in  the  closet, 
nor  found  in  books.  It  is  instinctive  and  prac 
tical — the  offspring  of  native  sagacity,  and  of 
an  intelligent  observation  of  things  as  they 
actually  exist.  Without  it,  all  other  knowledge 
will  be  comparatively  useless,  and  may  be  easi 
ly  misapplied  and  perverted.  It  is  the  visual 
organ  of  the  body  of  human  knowledge,  with 
out  which,  the  mind  is  a  labrynth  without  a 
clue,  or,  when  fullest  of  speculative  wisdom,  is 
like  the  blind  giant  striking  in  the  dark. 

Be  careful,  therefore,  gentlemen,  to  learn  all 
that  can  be  gleaned  by  rational  induction  from 
all  things  that  come  within  the  range  of  a  reas 
oning  and  discriminating  observation.  The 
rare  knowledge  that  can  be  only  thus  acquired 
Avill  be  necessary  to  enable  you  to  apply  all 
that  you  have  and  know,  most  honorably  to 
yourselves  and  usefully  to  mankind. 

Uth.  A  nuzzling  pettifogger — SUTOU  NK  ULTRA 
CREPIDAM — is  one  of  the  most  contemptible  and 
pestilent  of  human  beings.  A  dishonest  LIAV- 
ver,  of  ingenious  talents,  is  one  of  the  most 
dangerous  and  terrible  of  the  whole  animal 
kingdom;  but  an  enlightened  and  virtuous 
jurist  is  a  sentinel  of  liberty,  a  minister  of  jus 
tice,  a  guardian  of  peace,  on  a  lofty  eminence 
Avaving  over  the  admiring  multitude  below  ant 
around  him  a  pure  white  flag,  bearing  as  its  on 
ly  motto,  Law  and  Light,  Protection  and  Right 
Such  a  lawyer  is  the  friend  of  the  honest  pooi 
— the  counsellor  of  the  ignorant — the  champi 
on  of  the  weak-  -the  avenger  of  the  wrong,  and 
the  advocate  of  right,  public  and  private-. 

lOth.  But,  gentlemen,  to  become  eminent  and 
useful  lawyers,  you  must  resolutely  guard 
yourselves  against  two  of  the  besetting  sins  of 
your  profession — premature  distinction,  and 
political  ambition. 

You  must  be  patient,  constant,  and  pcrscver- 


ing.     Professional  ability 
fruits  of  toil  arid  of  tim< 


and  fame  are  ripe 
the   lucubrationes 


viginiti  annorum  are  not  more  than  sufficient 
for  their  full  maturity  and  grateful  flavor. 

It  is  neither  prudent  nor  just  to  solicit  more 
business  than  you  can   manage   well;  and    a  1  juggernaut? 
junior   apprentice,  cannot  Avell  manage  much.        To  rentlei 

i     :i  i        .._•____!        ..!_•  i    •     i 


rowth,  and  many  of  the  greatest  lawyers 
who  ever  adorned  the  profession,  have  en 
countered  and  finally  overcome  years  of  ob 
scurity,  poverty  and  discouragement.  But 
nark!  Their  season  of  trial  was  improved  by 
unremitted  study  and  observation.  And  here 
allow  us  to  admonish  you  never  to  ask  for  em 
ployment,  or  hunt  for  clients,  or  underbid 
your  competitors.  No  practice  is  more  hu- 
niliating,  or  can  be  a  more  certain  index  of  a 
destitution  of  merit;  and,  in  the  end,  if  not  at 
:he  beginning,  it  must  operate  injuriously. 
'The  cheap  lawyer,"  like  "the  cheap  mer 
chant"  and  "the  cheap  doctor,"  is  generally, 
when  the  whole  truth  is  known,  the  least  use 
ful  and  the  most  costly.  Instead  of  obtruding 
yourselves  into  business,  or  degrading  your 
selves  by  becoming  the  lowest  bidders,  prove 
yourselves  worthy  of  public  patronage,  and 
clients  will  hunt  you,  and  honorable  and  just 
employment  will  be  certain. 

llth.  Beware  of  the  seductions  of  political 
life.  Whenever  the  tumult  of  the  comitia  be 
comes  music  to  your  ears,  the  grove  of  Egeriu 
will  be  deserted  or  too  much  neglected.  It  is 
difficult  for  practical  law  and  politics—  though 
twin-sisters  —  to  live  and  labor  together  pros 
perously  in  one  household,  and  under  the  same 
guardianship.  A  young  lawyer,  attending 
properly  to  his  profession,  cannot  be  a  very 
useful  or  distinguished  statesman;  nor  cau 
such  a  statesman  easily  or  conveniently  be  a 
first  rate  practising  lawyer.  To  become  either 
useful  or  eminent  as  politicians,  your  time  and 
talents  should  be  chiefly  dedicated  to  politi 
cal  study  and  duty  —  so  as  to  render  a  proper 
devotion  to  the  law  impossible  —  for  to  be  qual 
ified  to  earn  political  renown  or  do  much  pub 
lic  good,  implies  an  extent  of  statistical,  politi 
cal  and  practical  knowledge,  which  are  the 
rare  fruits  of  intense  study,  great  talents,  long 
service  and  matured  experience.  How  insig 
nificant  is  the  upstart  and  shallow  quid  nunc 
who  knows  nothing  of  politics  but  what  he 
reads  in  partizan  newspapers,  or  hears  in  the 
street,  on  the  stump  or  in  the  legislative  hall. 
And  how  ineffably  contemptible  is  the  vulgar 
miscreant  who,  not  desiring  to  know  anything 
higher  than  party  discipline,  nor  to  feel  any 
ihimr  better  than  party  devotion,  stifles  con 
science,  prostitutes  reason,  and  degrades  his 
own  nature  to  an  approximation  to  that  of  the 
tiger  or  the  wolf,  in  sacrificing,  with  a  blind 
servility  and  fanatical  alacrity,  justice,  princi 


Too  much  will  occasion  abortions  which  may 
fix  upon  you  a  character  which  it  will  be  dif 
ficult.  to  change.  It  will  be  much  more  pro 
pitious  to  your  future  fortune  and  fame,  that, 
in  your  initiative  practice,  you  attend  satis 
factorily  to  a  few  cases,  than  negligently  or 
unskilfully  to  many.  You  must  not  yield  to 
despondency  —  whatever  may  be  your  difficul 
ties  or  prospects,  industry,  perseverance  and 
fidelity  will  ensure  ultimate  success.  The 
best  and  most  enduring  products  are  of  slow 
31 


ple,  judgment,   patriotism,  and  himself,  as  a 
mercenar    offerin     to  the  rapacity  of  apolitical 


valuable  service  or  acquire  hon 


orable  fame  as  statesmen,  you  must  think  for 
yourselves,  and  act  as  you  think,  and  all 
alone  for  the  true  welfare  and  glory  of  your 
common  country.  And  all  this  will  require 
probity,  firmness,  and  intelligence  of  no  com 
mon  cast.  The  subterranean  path  of  the  selfish 
politician  is  dark  and  devious,  and  full  of  per 
il — the  sword  of  Damocles  hanging  over  every 
turn  of  its  meandering  course.  Arid  the  more 
open  and  elevated  way  of  the  honest  states 
man,  though  radiant  and  straight,  is  beset 


242  VALEDICTORY  ADDRESS,  DELIVERED 


with  corroding  anxiety,  envious  obloquy  and 
mortifying  disappointments.  But  few,  very 
few  political  men  have  enjoyed  the  triumph  of 
unvaried  success,  or  have  acquired  honorable 
and  enduring  fame — fewer  ever  reached  the 


servility  and  vice.     Truth  and   probity,  and 
talents  rightfully  employed,  must  finally  tri 


ph  over  every  combination  of  hypocrisy, 
meanness  and  ignorance.  The  straight  path 
of  r  light,  and  that  alone,  leads  to  true  honor 


joal  of  their  hightest  hopes— and  fewer  still  j  and  renown.  Never  sacrifice  judgment  to  pas- 
have  been  satisfied  or  content.  Neither  office  jsion,  light  to  darkness,  principle  to  interest, 
nor  civic  honors  can  confer  solid  happiness  j  or  your  own  dignity  or  conscience  to  the  blind 
and  lasting  renown;  and  therefore,  neither  j  and  ferocious  idol  of  partisan  faith  and  alle- 
possesses  anything  for  which,  in  itself  or  on  glance,  The  soul  of  most  organized  political 
its  own  ac'co'unt,  it  will  ever  be  sought  or  de- 1  parties  is  selfishness — the  end,  power  and 
sired  by  a  wise  and  honorable  man.  When  !  emolument  in  the  hands  of  a  few — the  means, 
not  bestowed  as  the  just  reward  of  merit,  but]  mock  puritv,  counterfeit  principles,  popular 
obtained  by  stealth  or  solicitation  as  the  price  |  excitability,  passion  and  ignorance, 
of  prostitution,  they  are  but  gilded  ornaments  \  Look  at  democratic  Greece,  mobocratic  Rome, 
which  will  glitter  but  for  a  short  time  in  the  |  or  republican  Florence,  or  France,  or  Eng- 
eyes  even  of  the  ignorant  or  unprincipled,  lanp,  or  America — consider  ancient  times  and 
and  can  never  serve  as  passports  among  hon-  j  modern  times — examine  political  parties  of  all 
est  and  enlightened  men.  No  active  politi- 'times — and  the  truth  just  uttered  will  not  be 
cian  was  ever  a  man  of  tranquil  mind — no  denied  or  doubted.  The  history  of  party  un- 
seeker  of  office  was  erer  long  contented — no  der  the  Brunswick  Dynasty  in  England  is  but 
lover  of  office,  who  delighted  in  reflected  hon-  an  epitome  of  faction  or  selfish  party  everv 
or,  was  ever  both  wise  and  virtuous.  Besides, 'where.  You  recollect  that  after  Pultney. 
political  aggrandizement  is  so  fascinating,  and  ;  Wyndham  and  Shippen,  leaders  of  the  mal 
political  ambition  so  all-absorbing  as  general- ,  content  whigs,  the  tories  and  the  Jacobites, 
ly  to  produce  tastes  and  habits  unsuitable  to  crushed  the  VValpoIeon  party,  they  quarreled 
professional  employments,  and,  but  too  often,  j  for  the  spoils,  and  Pultney  himself,  the  popu- 
uncongenial  with  the  pure  feelings  of  disin-  jlar  oracle,  like  all  selfish  men  in  power,  apos- 
rerested  friendship,  and  the  still  holier  syrapa-  jtatised  and  out-Walpoled  "Walpolc  himself,  a* 
thies  and  lovelier  charities  of  private  and  do-  jsoou  as  he  reached  the  premiership — the  ulti- 
mestic  life.  And  like  him  "whoso  Empire  has  { mate  prize  of  his  long  crusade  against  de- 
been  lost  in  the  ambition  of  universal  con-  mnmced  aristocracy  and  corruption.  Such  is 
quest,"  the  man  who  attempts  to  become,  at  !  noisy  vaunting  patriotism — such  is  poor  mortal  - 
the  same  time,  a  great  lawyer  and  statesman,  ity  when  puffed  with  vanity,  pampered  with 
is  almost  sure  to  lose  both  objects  of  his  enter-  flattery,  or  stultified  by  premature  or  unright- 
prise.  It  is  as  unreasonable  as  unjust  to  seek  j  eous  ambition.  We  are  even  indebted  for 
political  or  official  preferment  until  we  are  Paradise  Lost  to  Milton's  blindness,  occasion- 
qualified  to  be  useful,  and  to  earn  honorable  ed  by  the  prostitution  of  his  great  mind  to  the 
distinction.  Do  not  then,  young  friends,  enter  parli/.an  drudgery  of  scribbling  with  intense 
the  political  arena,  if  ever,  until  you  are  prop- J  devotion  in  favor  of  i  lie  sanctimonious  and  hy- 
erly  matured,  or  have  determined  to  dedicate  j  pocritical  Cromwell.  And  had  he  not  written 
all,  or  the  chief  of  your  time,  to  the  public  himself  blind  in  the  filthy  cause  of  personal 
service.  politics,  he  might  have  been  long  since  for- 

12th.  But  the  talents  of  every  citizen  be-  gotten  or  remembered  with  regret  for  talents 
long,  in  some  measure,  to  his  country;  and  it  perverted,  and  patriotism  misguided.  Gentle- 
is  the  duty  of  every  one  to  contribute  to  the  (men,  always  be  independent,  arid  give  your 
welfare  of  the  commonwealth.  If,  therefore,  Own  reason  full  scope  and  fair  play.  Never 
at  any  time,  you  should  think  that  you  may  be  pin  your  faith  on  a,  politician's  sleeve.  "Cum 
able  to  render  valuable  service  in  public  life,  |  Platone  crrare  qnam  cum  aliis  rcctc  sentire'' — 
and  should  be  prepared  to  surrender  your  pro-  j  is  yet  the  practical  maxim  of  too  many  men 
fession,  or  to  make  it  only  a  secondary  object  i  who  are  entitled  to  be  free.  The  authority  of 
and  occasional  pursuit,  we  would  not  dissuade  a  great  or  popular  name  too  often  consecrates 
you  from  yielding  to  a  spontaneous  call  by  error  and  vice  by  confounding  them  witli 
your  country  into  her  public  employment,  truth  and  virtue.  Never  flatter  or  deceive  the 
And  should  it  be  the  fortune  of  any  of  you  to  j  people.  Honestly  seek  for  truth  and  justice — 
be  thus  engaged,  never  forget  your  sacred  eb-  land  never  either  do  or  utter  that  which  your 
ligations  to  truth,  to  patriotism,  to  honor,  and  impartial  and  enlightened  mind  may  condemn, 
to  justice.  Remember  that  your  own  lame  Such  a  course  of  conduct  will  secure  for  you 
will,  at  last,  depend  on  your  own  integrity,  public  confidence  and  esteem,  whatever  may 
rectitude  and  talents;  and  that  no  man  ever  be  your  condition;  audit  will  be  almost  sure 
acquired  honorable  and  lasting  influence  to  obtain  for  you, sooner  or  later,  a  just  share 
without  intrinsic  and  superior  merit.  If  yen  of  the  public  patronage — but,  in  any  event,  it, 
wish  to  be  trulv  useful — if  you  desire  the  sin- ,  and  it  alone,  will  console  you  with  an  approv- 

r  _    •     j    .  1    * "    .  ..  _n  !  rt.,.%x^     ,.  •  •  i         i       •         •  A  A      i       i  .        i  • 


2steem  of  virtuous  and  intelligent  men 
if  you  hope  for  posthumous  remembrance  and 
gratitude — be  sure  never  to  court  or  seek  a 
vulgar  and  ephemeral  popularity,  which  is  the 
idol  of  unreflecting  and  unprincipled  ambi 
tion,  and  is  caressed  and  won  by  duplicity, 


iug  conscience.  And  is  it  not  -better  to  live 
like  Aristides  or  to  die  like  .Socrates,  than  to 
be  an  Alcibiades  or  a  Cleon,  hoisted  on  the 
shoulders  of  an  insulted  or  deluded  populace? 
Nothing  but  virtuous  motives  and  useful  deeds 
will  embalm  your  names  in  the  grateful  re- 


BIFORE  THE  SENIOR  CLASS  OF  TRANSYLVANIA, 


243 


membrance  of  honest  men;  and  an  honest  man 
would  be  ashamed  of  any  other  fame  than 
honest  fame.  This  alone  is  creditable — this 
alone  useful — this  alone  will  be  pure  and 
lasting.  Not  what,  for  the  moment,  may  be 
popular,  but  what  is  right  should  be  your 
purpose.  Have  the  courage  always  to  do 
right,  and  bo  afraid  only  of  doing  wrong. 
Honorable  ends  by  honorable  means — be  this 
your  motto — and  then,  if  you  fall,  you  fall  a 
martyr  to  truth,  and  will  be  blessed.  But  if 
you  should  ever  rise  by  unworthy  or  dishonest 
means,  you  will,  at  last,  surely  fall,  and  be 
cursed  both  in  this  world  and  in  that  which  is 
to  come. 

"Oh!  is  there  not  some  chosen  curse, 
Some  hidden  thunder  in  the  stores*  of  Heaven, 
lied  with  the  uncommon  wrath, 
To  blast  the  wretch  who  owes 
His  greatness  to  his  country's  ruin.'' 

In  political,  as  well  as  in  civil  and  social 
life,  be  justly  tolerant.  Every  freeman  has  an 
equal  right  to  liberty  of  opinion  and  of  con 
science.  There  is  no  real  freedom  when  an 
honest  man  is  denounced  or  disfranchised  for 
an  honest  opinion.  In  describing1  a  perfect 
democracy,  Thucydidesput  into  the  mouth  of 
Pericles,  the  following  among  other  admira 
ble  suggestions — "Not  offended  at  anv  man  for 
following  his  own  humor,  nor  casting  on  any 
censure  or  sour  looks — we  converse  freely  with 
one  another  without  fear  of  offence,  fearing 
only  to  transgress  against  the  public." 

Bus  whatever  you  may  be,  you  will  be  citi 
zens  of  a  country  the  inost  interesting,  at  a 
time  the  most  eventful,  and  under  institutions 
the  most  popular  the  world  ever  knew.  The 
pilgrim  fathers  who  planted  the  seeds  of  civil 
and  religious  liberty — the  revolutionary  wor 
thies  who  conquered  tyranny,  consolidated  the 
rights  of  man,  and  embalmed  them  in  the  af 
fections  of  mankind — are  all  gone,  and  we,  too, 
of  this  generation,  who  have  succeeded  them, 
will  soon  pass  away  and  leave  to  you,  who  are 
coming  after  us,  and  are  about  to  take  our 
places,  a  land  and  a  government  blessed,  as 
Ave  trust,  by  a  benignant  Almighty,  as  the 
abiding-  place  of  liberty  and  light  fur  all  gen 
erations  of  men  in  a'll  times  to  com;1.  \\"e 
have  anxiously  endeavored  to  assist  you  in 
making  some  useful  preparation  for  the  enjoy 
ments  and  the  duties  that'lie  before  you.  The 
field  is  unlimited— the  harvest  is  ripe— -i  he 
precepts  of  Washington  and  the  memory  of  the 
illustrious  dead  are  fresh  and  full  before  you— 
the  happiness  of  the  living,  your  own"desti- 
nies,  and  the  hopes  of  the  unborn,  re.**t  upon 
you  as  among  the  laborers  of  the  dawnino- 
'day, ^  and  urge" you  to  be  in  all  things,  and  at 
all  times,  zealous,  and  active,  and  true.  In 
;;ll  the  relations  of  life,  important  duties  will 
devolve  upon  you — and  in  all,  however  hum 
ble  or  circumscribed,  you  may  be,  eminently 
and  lastingly  useful!  Enlightened  reason, 
perfect  justice,  and  comprehensive  patriotism 
and  benevolence,  should  be  your  cardinal 
guides.  Cultivate,  to  the  utmost,  all  your  mor 
al  faculties — this  you  owe  to  yourselves,  to 


your  fellow  nien,  and  to  him  who  gave  you,  as 
a  sacred  trust,  all  you  have.  Do  all  the  good 
you  can  to  others  by  a  scrupulous  attention  to 
all  positive  and  negative  obligations,  person 
al,  social,  and  civil;  and  never  forget  that  you 
should  always  "do  unto  others  as  you  would, 
— your  places  being  changed — wish  that  they 
should  do  unto  you" — this  is  the  golden  rule 
of  philosophy  as  well  as  of  religion.  Cherish 
a  rational  love  of  your  country,  not  only  be 
cause  it  is  your  country,  but  because  it  deserves 
your  love  and  support.  But  let  your  patriot 
ism  be  not  selfish  or  contracted,  but  benevo 
lent  and  comprehensive — embracing  your 
whole  country  in  all  its  parts,  and  interests, 
and  institutions,  and  with  an  intensity  pro 
portionate  to  the  benefits  it  confers,  and  the 
moral  ties  which  bind  you  to  it.  Encourage 
the  diffusion  of  moral,  religious  and  political 
truth,  and  countenance  organized  efforts  tend 
ing  to  promote  the  common  welfare.  Never 
encourage  falsehood  or  vice,  nor  infect  the 
morals,  pervert  the  taste,  nor  unhinge  the 
principles  of  any  rational  being  by  conversa 
tion  or  example  either  demoralizing  or  licen 
tious.  The  ruin  of  one  immortal  mind  could 
never  be  expiated  by  all  the  beneficence  of  a 
long  and  active  lifetime.  But,  as  the  surest 
means  of  preserving  every  thing  else  most  val 
uable,  strive,  by  all  proper  efforts,  to  maintain 
unpolluted  the  principles  of  constitutional  lib 
erty  nnd  equality,  to  uphold  the  authority  of 
law,  and  to  strengthen  the  ligaments  and  in- 
cretisJO  the  harmony  of  the  North  American 
Union.  Thus  you  may  be  useful  and  honored 
in  your  day,  and  inscribe  your  names  on  the 
roll  of  virtuous  and  enduring  Fame.  And 
thus,  truly,  you  will  have  lived  to  tho  honor  of 
your  race,  and  the  glory  of  your  age  and  coun 
try.  The  good  a  man  does  dies  not  with  him; 
his  example  and  his  labors  live  and  act  long 
after  lie  is  dead.  Remember  Socrates,  Cato, 
Newton,  Sydney,  Franklin,  Washington,  and 
Marshall— their  deeds  live  after  them,  and 
will  long  live  to  enlighten  and  bless-  mankind. 

We  must  here  conclude.  The  suggestions 
now  offered,  though  cursorily  presented  raptim 
c,i  carptim,  we  beg  you  to  consider  seriously  and 
long  remember. 

You  will  now  go  forth  us  the  winds,  to  scat 
ter  over  this  great  valley  of  the  west  seeds  of 
knowledge  which  have  been  gathered  under 
our  auspices.  May  these  take  deep  roots,  and  be 
watered  and  nourished  until  they  shall  grow, 
and  fructify,  and  cover  the  land  with  a  richer 
moral  foliage  and  a  fragrance  of  more  perfect 
liberty  and  truth.  Whatever  may  be  your 
destiny,  may  you  ever  cherish  fraternal  sym 
pathies  for  each  other,  and  a  filial  remem 
brance  of  >our  Alma-Mater.  She  w ill  never 
cease  to  feel  a  deep  interest  in  all  that  con 
cerns  you,  and  in  whatsoever  you  may  do,  or 
may  be;  and  it  will  rejoice  her  to  hear  of  your 
prosperity  and  honest  fame.  May  she,  'like 
Berecinthia,  be  UOAV  and  always — 
Felix  prole  virum 

Proud  of  her  sens,  she  lifts  her  head  on  high, 


244 


VALEDICTORY  BDDREBS. 


Proud  as  the  mighty  mother  of  the  sky — 

And  may  -we  too  be  allowed  to  hope  that 
you  will  not  forget  us,  nor  neglect  our  pre 
cepts.  If  we  have  contributed  to  your  im 
provement,  we  shall  be  happy  to  hail  you  as 
sons,  and  to  be  long  and  kindly  remembered; 
and  when  our  earthly  course  is  finished,  may 
you,  our  cherished  pupils  and  friends,  still  live 
to  adorn,  to  save,  and  to  bles.s  our  beloved 
countrv. 


Though — after  our  approaching  separation — 
we  may  not  meet  again  on  earth,  yet,  as  we  are 
taught  to  believe,  it  will  not  be  long  until  we 
shall  be  re-assembled  at  the  bar  of  Almighty 
God,  to  be  severally  judged  for  the  deeds  of 
our  probationary  pilgrimage.  May  the  light 
of  that  day,  like  a  bright  fixed  star,  guide  us 
from  the  snares  through  which  we  pass  to  the 
tomb,  and  cheer  our  hearts  with  a  hope  be 
yond  the  grave. 


PRELECTION. 


Lexington,  Nov.  8,  1852. 

Dear  Sir: — The  undersigned  have  been  appointed  a  Committee  on 
behalf  of  the  members  of  the  Law  Class  of  Transylvania  University,  to 
request  of  yon  a  copy  of  your  Introductory  Lecture,  delivered  on  the  4th 
inst.,  for  publication. 

We  hope  you  may  find  it  convenient  to  comply  with  this  request;  as  we 
believe  that  the  lucid  and  masterly  exposition  of  the  principles  of  the 
American  Constitution,  to  be  found  in  that  address,  will  have  the  tenden 
cy  to  check  the  monstrous  doctrine-  of  nullification  and  secession;  which 
threaten,  ere  long,  unless  {irmly  resisted  by  the  patriotic  intelligence  of 
the  people,  to  undermine  the  fabric  of  our  Government,  and  "to  enfeeble 
the  sacred  ties  which  now  link  together  the  various  parts"  of  our  beloved 
country.  We  have  the  honor  to  be,  sir,  with  very  high  regard,  your 
obedient  sonants,  J.  M.  HARLAN, 

G.  G.  VEST, 
V.  H.  LYNN, 

HON.  GEORGE  ROBERTSON.  Committee. 


Lexington,  Nov.  12th,  1842. 

Gentlemen: — Absence  from  home  has  delayed  an  answer  to  your  kind 
note,  requesting  a  copy  of  my  Introductory  Lecture  for  publication. 

If  the  deliberate  perusal  of  it  in  print,  shall  help  to  impress  you  with  right 
conceptions  of  the  radical  principle  of  the  Constitution  of  the  United 
States,  and  of  the  extent  01  the  powers  of  the  Government  it  established, 
the  Lecture  will  have  cfferv.e.d  as  much  good  as  i  could  expect.  It  was  in 
tended  for  yon  alone,  aiid.  if  its  publicity  shall  extend  its  influence  beyond 
the  Lecture  Room,  and  tend,  in  any  degree,  to  arrest  the  progress  of  per 
nicious  errors,  and  to  prevent  the  unhingement  of  the  Government  of  our 
model  Union,  I  shall  be  more  than  compensated  for  my  effort,  through 
you,  to  contribute  to  save  and  exalt  the  great  \rork  of  the  Washingtons, 
andMadisons,  and  Hamilton?,  and  Marshalls  of  America. 

In  compliance  with  your  request,  therefore,  I   commit  the  Address  to 
your  discretion,  to  be  disposed  of  as  you  deem  best. 

Yours   respectful]), 

G.  ROBERTSON. 


ADDRESS. 


WIIK.\  the  Federal  Convention  of  1787  de-  j 
iermined  to  substitute  a  constitution  for  a' 
league,  a  National  Government  operating  su 
premely  on  the  people  of  all  the  States,  instead 
of  a  confederation  among  the  States  as  polit 
ical  sovereigns — the  character  and  scope  of  the 
powers  which  the  sovereignty  of  the  Union 
should  possess,  presented  a  question  of  the 
gravest  consideration.  The  object  of  the  con 
templated  Government  was  the  union  of  the 
people  and  the  States;  and.  the  end  of  -'such 
union  was  undivided  nationality  abroad,  and 
peace,  justice,  and  security,  as  to  all  interna 
tional  interests  and  rights  "at  home.  Conse 
quently,  as  experience  had  demonstrated  the 
necessity  of  a  supreme  popular  Government, 
constructed  by  and  responsible  to  the  people 
of  all  the  States,  for  effecting  the  desired  ends, 
wisdom  and  patriotism  concurred  in  making 
the  authority  of  that  Government  co-extensive 
with  all  international  concerns.  History,  Phi 
losophy,  and  the  representative  principle  em 
balmed  in  the  Declaration  of  Independence, 
all  united  in  defining  this  as  the  true  conserv 
ative  boundary  between  the  Governments  of 
the  several  States,  and  the  comprehensive 
Government  of  the  United  States.  Common 
interests  should  be  protected  by  common  coun 
sels.  No  one  of  the  States  should  possess  any 
arbitrary  control  over  affairs  involving  the  lib 
erty,  peace,  or  property  of  1  he  people  of  all 
the  States.  Whatever  affects  the  rights  of  the 
people  of  all  the  States,  or  of  more  States  than 
one,  ought  to  be  under  the  guardian  care  of 
their  common  Government .  As  to  all  interna 
tional  concerns  abroad,  we  have,  and  should 
have,  but  one  Government,  and  but  one  Na 
tion — that  of  "the  United  States."  And  as  to 
all  domestic  concerns,  in  which  the  people  of 
the  Union  have  a  common  interest,  there 
should  be,  and  is,  but  one  Government — that 
of  the  Union.  Such  powers  as  were  essential 
to  that  Government,  were  taken  by  the  people, 
-from  their  State  Governments,  and  delegated 
to  the  National  Government,  which,  being  thus 
derivative,  possesses  no  power  except  what 
has  been  given  to  it;  by  the  provisions  of  the 
constitution.  And  to  avoid,  as  far  as  possible, 
collisions  between  the  States  and  General  Gov 
ernment,  as  to  their  respective  jurisdictions, 
the  national  constitution  classifies  and  enu 
merates  the  general  powers  deemed  csse*ntial  to 
enable  the  latter  to  fulfil  the  great  trust  of 
maintaining  harmony,  peace,  and  justice, 
throughout  the  limits 'of  the  Union.  .But  the 
most  eligible  mean*  of  effecting  the  ends  of 
the  enumerated  powers  being  various,  and  of 
ten  changeful  in  their  adaptations,  they  neither 
were,  nor  could  have  been  specified.  It  is  an 
undeniable  principle  of  both  jurisprudence 


and  philosophy  that,  when  power  is  granted 
to  an  agent  to  do  a  designated  thing,  or  a  trust 
is  confided  to  perform  a  defined  duty,  all  the 
accustomed  or  h'tting.means  of  doing  the  thing, 
or  executing  the  purpose  of  the  trust,  and 
which  the  constituent,  before  delegating  the 
power  or  imposing  the  trust,  might  have  em 
ployed  for  the  same  object,  arc  also  delegated 
to  the  representative  organ,  excepting  only  so 
far  as  the  character  of  authority  shall  have 
qualified  or  restricted  them.  But  lest  this  ax 
iomatic  truth  might  be  sometimes  questioned, 
in  its  application  to  the  constitution  of  the  Uni 
ted  States — which  recites  the  self-evident  fact, 
that  the  Goverment  constructed  by  it,  shall 
exercise  no  power  not  delegated  in  it — the 
principle  of  implied  or  resulting  powers  just 
suggested,  was  expressly  recognized  by  the  de 
claration  that,  in  addition  to  the  enumerated 
powers,  Congress  should  possess  all  other  pow 
ers,  "necessary  and  proper,"  for  carrying  them 
into  full  and  complete  effect.  Without  that 
prudent  recognition,  the  existence  of  construc 
tive  powers  would  have  been  unquestionable, 
and  their  scope  would  have  been  as  compre 
hensive,  and  the  test  for  defining  it  as  clear, 
as  now.  implied  power  is  only  the  right  to 
employ  appropriate  and  nnprohibited  means 
for  fulfilling  the  ends  of  the  express  powers. 
Js  the  thing  done  or  proposed  under  the  claim 
of  constructive  authority,  a  mean  to  an  end  of 
any  express  power — is  it  expressly  forbidden  * 
by  the  constitution,  or  is  it  inconsistent  with 
its  genius  or  any  of  its  principles? 

This  is  the  true  and  only  constitutional 
touchstone  of  implied  power. 'it  is  sufficiently 
obvious,  and  can  but  seldom  be  of  difficult  or 
doubtful  application,  by  the  candid  and  intel 
ligent  mind,  enquiring  only  for  the  truth. 

'  I  f  there  be  no  express  grant  of  power  to 
Congress  to  enact  a  statute  for  a  specific  pur 
pose,  the  question  of  its  constitutionality  will 
depend.  1st,  on  whether  there  be  any  express 
power,  the  end  of  which  may  be  accomplished 
or  facilitated  by  such  legislative  provision — 
and2d,  on  whether  the  prescribed  measure  be 
interdicted  by  the  constitution.  The  constitu 
tional  declaration  that  Congress  shall  possess- 
all  power  "necessary  and  proper"  for  carrvinf 
into  effect  the  express  powers  specifically  del 
egated,  is  not  restrictive  of  the  universal  prin 
ciple,  that  a  grant'  of  express  power  to  do  a 
thing  carries  with  it  authority  to  employ  any 
unprohibited  mean  for  executing  the  grant  in 
a  manner  consistent  with  the  object  for  which 
the  power  was  delegated.  "Necessary,"  with 
out  qualification,  does  not  mean  that  which  is 
indispensable.  As  it  is  not  a  technical  term, 
it  must  be  construed  according  to  the  popular 
use  and  import  of  it.  Its  ordinary  adjectrre 


DELIVERED  BEFORE  THE  LAW  CLASS.  247 


acceptation  is  synonimous  with  a  mean  effect- 1  constitutional.  So,  for  fulfilling  the  end  of  the 
uating  or  tending  to  effectuate  an  end.  When  i  express  power,  "to  establish  post  offices  and 
a  certain  end  is  to  be  accomplished  by  means,  ;post  roads/'  it  might  be  more  expedient  and 
some  effectual  or  appropriate  mean  to  the  end  j  economical  to  have  the  mails  carried  at  the  ex- 
is,  of  course,  necessary.  For  effecting  mostjpenseof  the  General  Government,  by  its  ofii- 
ends  of  the  express  powers  in  the  constitution,  i  cial  agents,  for  compensation  fixed  by  law. — 
the  efficient  means  are  various  and  multiform;  j  But  this  would  not  show  that  the  more  expen- 
no  one  of  which,  more  than  another,  can  be  |  sive  and  irregular  mode  of  having  it  trans- 
deemed  indispensable.  Which  should  be  pre- '  ported  by  contract,  as  a  job,  is  unconstitu- 
ferred,  as  best  adapted  to  the  end,  is  a  ques- 1  tional. 

tion  concerning  which  equally  enlightened!  The  gamo  distinction  between  expediency 
minds  may  differ;  and,  consequently,  sound  and  er  app]ios  with  equal  clearness  and 
discretion  will  make  the  selection.  Those  who  forc(?i  to  rhe  dass  of  resuiting,  or  implied 
do  not  concur  in  that  choice,  have  no  right  to  powers.  The  express  power  to  regulate  for- 
say  that  the  act  is  unconstitutional,  merely  |  ei gll  commerce,  carries  with  it  thfl  incidental 
because,  in  their  opinion,  or  according  to  their  er  to  improve  onr  bays  and  harbors,  and 

taste,  some  other  mean  would  have  been  more  ^  light-houses,  to  give' facility  and  securi- 
appropriate  or  expedient.  The  degree  of  rela- jty  to  commercial  navigation  and  intercourse, 
tive  adaptation  is  a  matter  of  policy,  not  of  hfo  such  improvement  is  indispensably  neces- 
power.  Any  mean  that  relates  to  the  end  of  j  but  ^^  one  that  hag  ^  bee*n  mad(? 

any  one  of  the  enumerated  powers,  is  as  con-  |  ,n  be  usefql,  has  relation  to  an  express  pow- 
stitutional  as  any  other  mean  to  the  same  end,  ;  aud  tends  to  subserve  its  *t  ob  ects. 
if  it  be  not  prohibited.  Of  all  such  means  no  There  are  various  modes  which  mi  ht  allJtend 
one  can  be  deemed  more  necessary  than  an-  to  the  same  result,-each  of  them  is  within  the 
other  The  constitutionality  or  unconstitu-  |constitut.ionai  discretion  of  Congress,  and 
tionahty  of  any  one  of  them  cannot  depend  |  eac]  thcrefOre,  though  it  mav  not  be  the  best, 
upon  the  uncertain  and  controverted  opinion  j  is  constitutional.  A  breakwater,  costing  mil- 
of  itsoptimism,  which  involves  the  question  of  |  Hons  of  dollar  ]n  tum  out  to  be  C01^  ra. 
expediency,  not  of  power.  Lut,  among  all  :  u  j  ugelc6S  for  thc  pl.otcctive  purpos^  for 
the  various  unprohibited  means  which  relate  to  which  it  p]iall  hayc  bPeeu 
the  end  of  an  express  power,  the  majority  nave 


a  right  to  choose  that  which  it   deems  best 


might  not  be   expedient  therefore — but,  as  it 


a  ngm,   10  c noose  mai  est       lates  t    t,         wcr  to  re^ulate  commerce,  and 

adapted  to  the  fulfilment   of  the   purpose  of  was  raade  to  promote  it,°thc  implied  power  to 
delegating   that   power.        he  power  to  do  a  |  make  itis  ^questionable,  even  though  it  was 
thing,  does  not  depend  on  the  policy  or  expe-  i      it]l      indis^n8ably  necessary,  nor  even  ex. 
diency  of  the  thing.     A  particular  species  of   T,cd;ent 
legislation  by  Congress,  might   operate  very 

beneficently  on  the  general  welfare.  Yet,  un-  i  If  there  be  no  implied  power  to  do  anything 
less  there  is  either  an  express  power  to  do  it  in  the  execution  of  an  express  power,  without 
or  it  has  relation  to  some  such  power  and  will  doing  which  the  object  of  the  express  power 
tend  to  effectuate  the  end  of  it,  the  constitu-  could  not  be  fulfilled,  then  there  can  be  no  such 
tion  would  not  sanction  it.  For  example,  it  j  thing  as  implied  power;  for  if  any  of  the  vari 
might  be  useful  to  have  one  uniform  national  ' 


law  regulating  thc  obligation  of  contracts,  or 


ous   means  for  effecting  thc  same  end  be  not 
constitutional,  because  the  end  could  bu  accom- 


the  transfer  of  title  to  land  by  inheritance,  con-  plished  in  some  other  mode,  no  one  of  the 
veyance  or  devise.  But  all  these  matters  are  j  adaptable  means  can  be  constitutional,  be- 
local:  and,  as  none  of  them,  as  means,  relate  to  cause  no  one  of  them  can  be  indispensable, 
the  end  of  any  of  the  enumerated  powers  giv-  while  there  is  another  which  can  sprre  the 
en  to  Congress,  every  such  act  would  be  uncon-  same  purpose.  The  expedients  for  executing 
stitutional  and  void.  So,  on  the  other  hand,  the  trust  of  an  express  power,  maybe  as  vari- 
the  impolicy  of  an  act  docs  not  prove  that  it  is1 ;  ous  as  the  letters  of  the  alphabet.  If  the  plan 
unconstitutional.  A  sub  treasury  may  not  be  j  of  Abe  not  constitutional,  merely  because  B's 
the  most  suitable  or  politic  mode  of  executing  will  effect  the  same  object,  and  therefore  A's  is 
the  express  power  of  taking  eare  of  and  trans-  'not  indispensable;  then,  for  the  same  reason, 
mittingthe  national  treasure;  it  may,  therefore,  j  neither  B's  nor  that  of  any  other,  can  be  con- 
be  inexpedient  or  impolitic.  Nevertheless,  it  stitutional.  And,  consequently,  there  could 
may  be  clearly  constitutional,  because,  as  a  j  be  no  incidental  power  in  any  case  except  the 
mean  having  an  obvious  relation  to  the  end  of!  non-existent  and  unimaginable  one,  in  which 
an  express  power,  it  may  execute  the  trust,  1h<>'  there  is  but  one  mean  for  effecting  the  end  of 
not  perhaps  in  the  best  possible  manner.  This  |an  express  grant  of  power.  Adaptation  of  un- 
is  equally  true,  even  as  to  the  express  powers,  i  prohibited  means  to  ends  of  express  powers, 
Congress  might  happen  to  declare  an  unjust!  is  the  true  and  only  test  for  determining  wheth- 
or  impolitic  Avar.  The  express  power  to  de-  i  er  an  act  not  expressly  authorized  is  necessary 
claiewar  is  limited  only  by  the  discretion  of  i  for  effectuating  one  of  the  enumerated  powers. 
Congress.  War  is  one  mode  of  effecting  na-  i  The  comparative  degree  of  adaptation  affects 
tional  security  and  justice, — other  modes  may  j  '-he  policy  only.  And  this  is  not  only 
happen  to  be  more  expedient  for  attaining  the  j  self-evident,  but  has  been  illustrated  by- 
same  object, — in  such  a  case  war  would  be  in-  the  history  of  Congressional  legislation  ever 
expedient.  But  still  it  would  be  undoubtedly  [since  the  inauguration  of  the  Federal  Consti- 


248 


INTRODUCTORY  LECTURE, 


tution,  and  confirmed  by  universal  acquies 
cence  and  authority. 

Before  there  can  be  implied  power  to  do  a 
thing,  it  must  not  ouly  be  in  the  constitution 
al  sense  "necessary,"  but  also  "proper;"  which 
means,  not  that  it  shall  be  expedient,  but  ap 
propriate  merely,  or  in  other  -words,  suitable  to 
the  end,  and  not  repugnant  to  the  principles  of 
the  constitution;  for  that  which  is  prohibited 
by  the  letter,  or  is  incompatible  with  the  spirit 
of  the  constitution,  cannot  be  "proper."  And 
this,  too,  is  well  settled  by  history  and  author 
ity,  popular,  legislative,  and  judicial. 

The  test  thus  denned  for  determining  the  ex 
istence  and  limits  of  implied  power,  cannot  be 
objected  to  as  either  too  vague  or  too  latitudi- 
nary.  One  more  certain  or  properly  restricted 
could  not  be  substituted.  He  who  discards  it, 
is  at  sea  without  compass  or  rudder.  He  can 


and  parties,  but  of  the  same  men  and  the 
same  parties,  at  different  times  and  on  differ 
ent  occasions.  This  is  a  deplorable  truth;  and 
persistence  in  a  procedure  so  fluctuating  and 
liable  to  abuse,  will  afford  an  augury  of  disso 
lution  and  anarchy,  or  of  despotism  and  cen 
tralism,  at  no  very  distant  day.  It  would, 
sooner  or  later,  inevitably  unhinge  the  consti 
tution,  and  make  it  the  sport  of  ambition,  lo 
cal  or  national.  The  true  test,  honestly  and 
faithfully  applied,  would  restore  the  constitu 
tion  to  its  original  purity,  simplicity,  harm- 
lessuess, 
have  no  more 
"States  rights"  parties, 
struction,"  or  "latitudinary  construction,'" — no 
more  vi&rations  from  centralization  to  dissolu 
tion,  from  a  National  Government  of  the  peo 
ple,  to  a  confederation  of  State  sovereigntie 


its  original  purity,  simplicity, 
>s,  and  benificeuce.   And  then  we  should 
re  nullifying  States,  or  mis-styled 
>•"  parties,' — no  more  "strict  con- 


have  no  criterion  of  construction,  but  an  arbi-  i  claiming  constitutional  supremacy.  But  har- 
trary  and  varying  discretion?' governed  only  by  jmony  and  security  would  pervade  a  union  ho- 
his  passions,  or  his  changing  opinions  of  ex-  mogenious  and  steadfast  in  fundamental  poii- 


pediency;  and  will  sometimes  assume  powers 
that  do  not  exist,  aaid  at  other  time*  repudiate 
those  that  do.  In  his  hands  the  constitution 
will  be  a  Protean  puppet  of  party  or  of  times; 
aud  that  which,  until  authoritatively  changed, 
must  be,  under  all  circumstances,  one  and  the 
same,  will  lose  its  uniformity  and  identity, 
and  change  with  policy,  interest,  or  the  ther 
mometer  of  popular  feeling.  The  history  of 


tics.     The  self-styled  "strict  constitutionist, 
and  the  falsely  styled   "States-rights"  politi 
cians,  mould  the  constitution  to  suit  the 


siou  and 


and  their  immediate  purpose.     Sor 
ssive  bower  is  conceded  to  a  pati 


excessive  powei 


occa- 
Sometimes 

patronizing 


party  President,  and,  at  other  times,  almost  all 
power  is  denied  to  an  incumbent  of  a  different 
cast  —  and  sometimes  is  denied  to  Conress 


the  Bank  of  the  United  States  affords  an  appo- 1  bl 


any  implied  power  which  is   r.ot  indispensa 


and   at  other  times,  power 


appo- 1  biy  necessary, 

site  illustration.     Men  and  parties  have  often  |  claimed  to  do  whatever  is  desired,  or  deemed 
hanged   concerning  the    constitutionality  of  beneficial  or  expedient.     "Strict  construction" 


such  a  Fiscal  Institution.  Even  Mr.  Madison 
and  Mr.  Clay  denounced  it  as  unconstitutional 
in  1811,  and  advocated  it  as  constitutional  in 
1816.  Each  of  them  had  applied  to  it  the  va 
rying  and  delusive  test  of  expediency.  They 
tnoUght  it  impolitic  in  1811,  politic  in  1810. 
It  would  have  been  perfectly  consistent,  there 
fore,  for  each  of  them  to  have  opposed  the  char 
ter  at  the  first  of  these  periods,  and  to  have 


is  itself  vexatiously  indeterminate  and  flexible. 
It  lias  no  settled  land  mark;  nor  is  it  governed 
by  any  fixed  principle  of  uniform  and  certain 
application.  If  its  principle  be,  that  no  pow 
er  belongs  to  the  General  Government,  except 
what  has  been  expressly 'granted,  it  is  radical 
ly  absurd,  aud  is  falsified  bv  the  express  de 
claration  of  the  constitution  itself,  and  by  un 
varied  legislative  action  and  judicial  sanction, 


been  for  it  at  the  last.  But,  if  it  had  been  un-  j  ever  since  the  adoption  of  it.  If  its  principle 
constitutional  at  any  time,'it  could  never  have  i  be,  that  there  is  no  implied  power  which  is  not 
become  constitutional  without  a  change  of  the  !  indispensably  necessary  for  fulfilling  the  ob- 
constitution.  Until  some  such  change  of  it,  all  Iject  of  some  express  power,  it  is  equally  ab- 
its  powers,  express  and  implied,  must  be  pre- 1  surd,  has  been  exploded  by  the  same  authovi- 
cisely  the  same  at  all  times  and  under  all  cir-  ties,  and,  if  let  alone,  would  result  in  *uicidy. 

And,   if  its  principle   be,  that  there  is  no  im 
plied   power,  except  that  which  operates    as  a 


cumstances.  Time  and  circumstance  may, 
and  often  do,  change  the  policy  of  exercising 
certain  powers,  or  of  doing  it  in  the  same 
mode;  but  they  can  never  give  power  not 


mean  lo  the  end  of  some  express  power,  then 
the  strict  constructionist  concurs  in  theory  with 


granted   by   the  constitution,  nor  cither  abro-  j  the  most  orthodox  class  of  American  jurists  and 

fate  or  change  that,  which  was  once  conferred    statesmen.     But  "plain"  " clear ,"  " obvious'' — 
>y  it.     The  test  we  have  defined  as  the  true 
one  will  preserve  the  consistency  and  uniform 
ity  of  the  constitution — any  otter  will  make;  it 
clay  in  the  hands  of  the  Potter. 

The  stability  and  efficacy  of  the  Constitution 
require  that  it  should  be  uniform  in  its  char 
acter  and  operation;  and,  consequently,  it 
should  be  always  construed  by  a  fixed  test  as 
certain  as  the  magnet.  For  want  of  such  a 
test,  or  because  it  was  neither  carefully  nor 
uniformly  applied,  the  cor ?titution  has' been 
made  to  assume  different  and  inconsistent 
characters  at  different  times,  and  under  the 
controlling  influence,  not  only  of  different  men  trine  which,  not  only  urges  the  same  vagary 


all  have  degrees;  and  what  may  he  quite  obvi 
ous  to  one  mind,  may  be  altogether  invisible  to 
another.  This,  therefore,  is  too  vague  and  va 
riable  for  constitutional  certainty — and  needs 
the  polarity  of  some  principle  more  fixed  and 
infallible, — and  that  is  the  one  we  have  al 
ready  defined  as  the  only  true  aud  safe  guide; 
and  which  has  hitherto  been  recognized  by  all 
the  public  authorities  of  the  Union. 

There  is,  therefore,  nothing  consistent,  or 
maintainable,  in  the  distinctive  appellative-, 
"strict  obstructionist."  And  there  is  just  as 
little  in  that  of  "States-Rights"  party  or  doc 


DELIVERED  BEFORE  THE  LAW  CLASS. 


249 


of  "strict  construction,"  but  goes  to  the  des 
tructive  extremity  of  claiming  for  each  'State 
of  the  Union  political  supremacy,  and  of  de 
nying  to  the  authorities  and  laws  of  that  Union 
ultimate  and  practical  sovereignty.  This  funda 
mental  heresy,  which  had  been  considered  as 
long  dead  or  banished,  was  revived  under  the 
auspices  of  John  C.  Calhoun,  during  the  ad 
ministration  of  President  Jackson,  whose  im 
mortal  proclamation  in  1832,  denounced  it  as 
treason.  Its  only  basis  is  the  monstrous  as 
sumption  that  the  Federal  Constitution  was 
made  by  the  States  in  their  political  capacities, 
and  not  by  the  people  in  the  same  capacities  in 
'which  they  made  their  respective  State  Con 
stitutions — that,  though  it  declares  itself  to  be 
the  supreme  law  of  the  land,  and  although  the 
people,  who  made  it,  established  by  it  a  tribu 
nal  for  deciding,  in  the  last  resort,  on  its  con 
struction  and  application,  yet,  nevertheless,  it 
is  a  mere  league,  like  the  superceded  articles 
of  Confederation,  between  sovereign  States, 
each  of  which  has  a  constitutional  right  to  dis 
sent  from  the  national  authorities,  to  decide 
for  itself,  and  to  "nullify"  within  its  borders, 
any  act  which  it  may  choose  to  consider  un 
constitutional.  The  pivot  of  this  nullifying 
platform  is  the  radical  error  that  each  of  the 
States  in  the  Union  still  retains,  in  the  ulti 


mate  sense,  under  the  Federal  Constitution,   thority.     Nor,  for  the  same   reason,  and  full} 


uncontrollable  sovereignty — or,  in  other  Avords, 
that  the  constitution  is  a  mere  confederation, 
and  is  not  an  organic  law  intended  to  operate, 
and  with  power,  to  enforce  its  operation  on 
every  citizen  of  every  State,  as  a  national  and 
supreme  law  of  all  and  for  all — "any  provision 
in  any  State  law,  or  State  Constitution  to  the 
contrary,  notwithstanding."  If  this  be  the 
true  theory  of  the  Constitution,  each  State 
being,  on  that  hypothesis,  an  independent  sov 
ereignty,  each  must,  as  an  essential  clement  of 
all  such  sovereignty,  possess  the  acknowledged 
right  to  decide  for  itself  as  to  its  own  power, 
and,  consequently,  as  to  the  validity  of  all 
acts  passed  by  Congress,  and  also  as  to  the 


exercise  a  right  to  overrule,  or  resist,  by  force, 
the  acts  of  the  General  Government,  ratified 
and  confirmed  by  the  people  of  the  United 
States  through  their  judiciary.  The  right  to 
decide  as  to  its  own  constitutional  power  is  an 
inherent  and  indispensable  attribute  of  all 
national  sovereignty. 

The  provisions  of  the   Constitution  of  the 
United  States — and  its  style — and  its  declara 


tions — and 
invariable 


its  objects — and 
exposition,   and 


its    history,   and 
operation,    ever 


since  the  adoption  of  it  prove,  beyond  contro 
versy  or  doubt,  that  it  derived  its  existence 
and  authority  from  the  people  who  made  or 
became  parties  to  it,  just  as  they  made  or  be 
came  parties  to  their  several  State  constitu 
tions — that,  in  purpose  and  effect,  it  constitu 
ted  a  supreme  National  Government  lor  all  the 
people,  and  above  all  the  States — that  it  is  a 
fundamental  law,  and  like  all  organic  law, 
cannot  be  rightfully  resisted  or  overruled  by 
any  party  to  it  as  long  as  it  shrill  continue  to 
exist;  and  that,  consequently,  it  has,  and  must 
have,  the  political  right  and  power  to  maintain 
its  own  existence  and  enforce  its  own  authority. 
A  single  State  cannot  be  practically  a  sover 
eign  for  local  purposes,  if  any  portion  of  its 
citizens  have  theconsitutional  right  to  overrule 
or  resist  its  organized  power  or  judicial  au- 


in  the  same  sense,  can  the  United  States  be 
practically  sovereign  for  national  purposes, 
unless  the  General  Government  has  the  right 
to  determine  all  questions  involving  its  own 
sovereignty,  and  the  power  to  uphold  it. 

When  the  constitution  was  under  considera 
tion  for  adoption,  a  minority  advocated  a 
league  or  confederation — the  majority,  with 
WASHINGTON  at  their  head,  feeling  the 
absolute  necessity  of  a  supreme  National  Gov 
ernment  with  powers  co-extensive  with  the  in 
terests  and  purposes  of  Union,  prevailed  and 
established  such  a  Government.  Mr.  Jeffer- 
son  was  one  of  that  minority,  and,  for  years 
after  the  ratification  of  the  constitution  by  the 


correctness   and  effects    of    aJl  the    decisions  \  people  of  the  States,  endeavored  to  construe  it 
rendered  by  the  judicial  organ  of  the  Union,   as  a  compact  of   confederation    among  sov- 


the  Supreme  Court  of  the  United  States;  and, 
as  a  necessary  consequence,  each  State  would 
also  possess  the  constitutional  right  to  secede, 
whenever  it  might  choose  to  abandon  the 
Union.  But,  if  the  people  of  each  State,  in 
their  own  original  right,  are  parties  to  the 
Constitution  of  the  United  States,  and  by  it 
organized  a  National  Government,  supreme 
over  all  for  all  national  purposes,  then  it  is 
equally  true  and  undeniable  that  the  compre 
hensive  General  Government  thus  constituted, 
must  be  the  highest  sovereign,  and  possess,  as 
an  obvious  and  inevitable  consequence,  the 
authority  to  decide  as  to  its  own  sovereignty, 
and  the  political  power  to  uphold  that  sov 
ereignty,  and  enforce  its  own  acts  and  its  own 
decisions;  and,  consequently,  no  citizen,  nor 
any  class  or  number  of  citizens,  whether  of  one 


ereigns.  Being  looked  to  as  their  leader,  by 
the  party  opposed  to  President  John  Adamn, 
and  denouncing,  as  unconstitutional  the  alien 
and  sedition  laws  just  then  enacted  by  Con 
gress,  Mr.  Jefferson  wrote  and  sent  to  John 
Breckinridge  the  resolutions  of  "98,"  which 
were  adopted  by  the  Kentucky  Legislature. 
The  first  of  these  resolutions,  after  characteri 
zing  our  charter  of  Union  as  a  "compact  under 
the  style  and  title  of  a  Constitution  of  the 
United  States,"  proceeds  to  declare  "that,  to 
this  compact  each  State,  acceded  as  a  State, 
and  as  an  integral  party;  its  co- States  forming, 
as  to  itself,  the  other  party;  that  the  Govern 
ment  created  by  this  compact  was  not  made 
the  exclusive  or  final  judge  of  the  extent  of 
the  powers  delegated  to  itself;  since  that 
would  have  made  its  discretion,  and  not  the 


State  or  of  different  States,  can  constitutionally  constitution,   the  measure  of  its  powers;  but 
32 


250 


INTRODUCTORY    LBOTURB, 


that,  as  in  all  other  cases  of  compact  between 
parties  having  no  common  judge,  each  party 
have  an  equal  right  to  judge  for  itself,  as  well 
of  infractions  as  of  the  mode  and  measures  of 
redrcBS." 


to  be  a  palpable  error — a  total  misconception 
of  the  provisions,  the  objects,  and  the  suprem 
acy  of  that  constitution.  But  the  same  false 


principle  is  the  pivot  and  only  support  of  the 


I  exploded   doctrine    of  nullification; 


piracies 


and   felonies  committed  on  the  high 


curities  and'eurrent  coin  of  the  United  States,   P.ointf!  out  in  flie  to"er  tlie  remedy,  for  the 


right  asserted  in  the  first,  of  a  single  State  to 
judge  for  itself,  and  prevent,  within  its  limits, 
the  enforcement  of  an  act  of  Congress  which  a 
majority  of  its  citizens  should  deem  authorized 
by  the  constitution.  And  in  announcing  that 
remedy,  "NCLLIFICATIOX"  is,  for  the  first  time. 


seas,  and  offences  against  the  laws  of  nations, 
and  no  other  crimes  whatever,  and  it  being  true, 
as  a  general  principle,  and  one  of  the  amend 
ments  to  the  constitution  having  also  declared 
'that  the  powers  not  delegated  to  the  U.  States 


by  the  constitution,  nor  prohibited  by  it  to  the  -iscd-  From  tllls  source,  Mr.  Calhoun  borrowed 
States,  are  reserved  to  the  States  respectively,  I the  Principle  and  the  term.  There  can  be  no 
or  the  people;"  therefore,  also,  the  same  act  of  i  other  rational  construction  of  the  resolutions  of 

Jr        1  ?no      ±1 xl.^x         * .      J.T.  „  _         1 ~\f--      r*i  _  n 


Congress  passed  on  the  14th  of  July,  1798, 
and  entitled  "an  act  in  addition  to  the  act  en 
titled  an  act  /or  the  punishment  of  certain 
crimes  against  the  United  States;"  as  also  the 
act  passed  by  them  on  the  27th  of  June,  1798, 
entitled  "an  act  to  punish  frauds  committed  on 
the  Bank  of  the  United  States;"  and  all  other 
of  their  acts  which  assume  to  create,  define,  or 
punish  crimes  other  than  those  enumerated  in 
the  Constitution,  are  altogether  void,  and  of 
no  force,  and,  that  the  power  to  create,  define, 
and  punish  other  crimes,  is  reserved,  and  of 


98,  than  that  given  to  them  by  Mr.  Calhoun 
and  by  their  author.  If  their  principle  be  true, 
a  right  to  nullify,  as  asserted  in  the  resolutions 
of '99,  must  be  admitted  to  be  undeniable — 
and  that  it  is  a  constitutional  right,  according 
to  that  principle,  could  not  be  doubted.  If 
that  principle  be  true,  there  is  no  General 
Government  or  national  institution  with  au 
thority  to  govern — there  is  no  national  consti 
tution;  fora  constitution  is  a  supreme  law,  and 
;i  law  cannot  be  supreme,  which  the  enacting 
authority  has  neither  right  norpower  to  enforce 


right'appertains,  solely  and  exclusively,  to  the]  against  all  popular  opposition.     The  sugges- 
respective  States,  each  within  its  own  terri-   tion  m  the  first  of  the  resolutions  of ,» 98,  that 

the   exclusive  or  final   right  in    the    General 


tory. 


These  resolutions  of '98  were  transmitted  to 


Government  to  judge  of  its  own  powers  and 


.,.  the  constitutionality  of  its  own  acts,  would 
other  States  for  their  concurrence;  but  most  of  j  makc  its  Discretion,  and  not  the  constitution, 
those  State  repudiated  them  as  radically  wrong.  |  thc  mCMurc  of  its  imt]1C)ritv,  is,  with  all  proper 
Mr.  Jefferson,  m  that  dilemna,  wrote  the  reso-!re  worgc  than  ;.ile±it  is  sjcit{a]> 


lutionsof  '99,  endorsing  those  of  '98,  and  pre- 


Therc  can  be  no  supremacy  of  law  or  govern- 


scribing  a  specific  mode  of  enforcing,  by  a  mal-  ment  withoilt  such  a  right."  In  a  contest  bo- 
content  State,  its  imputed  sovereignty,  in  these  t  ft  8tate  and  anv^ortion  of  its  own  citi. 
words:  "The  principle  and  construction  con- . /eng  as  to  thc  constitutionality  of  any  of  it« 
tended  for  by  sundry  of  the  State  Legislatures, ;  le(rislativc  acts  nas  not  the  State,  through  its 
that  the  General  Government  is  the  exclusive  judid  the  umlonbtedj  exclusive,  and  final 
Judge  of  the  extent  of  the  powers  delegated  rolitical  rigllt  to  dccide?  No  government 
to  it,  stop  nothing  short  of  despotism,  since  •  couW  cxist  without  that  right-it  Is  the  ul ti 
the  discretion  of  those  who  administer  the  gov- ,  mfttc  objcct  of  all  (,onstitutioua]  ^venmient. 
eminent,  and  not  the  constitution,  would  be : 

the  measure  of  their  powers — that  the  several  I  The  constitution  declares  that  it  shall  be  the 
States  who  formed  that  instrument,  being  sov-  i  supreme  law  over  all  thc  States  and  all  thc 
ereign  and  independent,  have  the  unquestion- !  people;  and  it  organizes  a  national  court  for  all 
able  right  to  judge  of  its  infraction,  and  that  aj  the  States  and  all  the  people,  us  the  final  ar- 
NULLIFICATION,  by  those  sovereignties,  of  i  kiter  of  all  contests  concerning  that  constitu- 
all  unauthorized  acts  done  under  color  of  that  i  tion,  and  vests  it  with  final  and  conclusive 
instrument,  is  the  rightful  remedy."  i  jurisdiction  of  all  such  questions.  In  adopting 

The  principle  of  the  first  of  the  resolutions  > thc  <^nstitutio»>  the  people  of  all  the  States 
of  '98  is,  that  the  States  of  the  Union  retain  !  agreed  that  their  own  national  supreme  court 
all  their  original  sovereignty— that  the  consti-  ~ appointed  by  their  agents,  acting  in  their 
tution  of  the  United  States  is  onlv  a  compact  "^and  tor  them,  and  responsible  to  them— 
or  league  between  them  as  sovereigns— that ;i  8hou,\d>  m  ftli  cases  involving  the  powers  of 
there  is  no  common  judge  over  them— and  ! tlie  Generttl  Government,  constitute  the  final 
that,  consequently,  each  State  has  a  conatitu-  Jirbltcr  of  tlic  coll*tlt"tio»  and  the  law.  WJth- 
tional  right  to  judge  for  itself,  in  the  last  1T.  I  <>»t  some  such  fundamental  provision  for  ad - 
sort,  of  the  validity  of  all  the  acts  of  the  Gen-  :Justm.«  H.U  collisions  of  power  or  questions  of 
«ral  Government.  This  must  now  be  Admitted  !  constitutional  right,  national  uniformity,  and 


DELIVERED  BEFORE  THE  LAW  CLASS. 


251 


union,  could  not  he  maintained.  And  if  men 
will  call  the  constitution  "a  compact,''  still  this 
provision  is  a  cardinal  part  of  it,  and  was  adopt 
ed  to  prevent  nullification. 

The  great  object  of  the  Federal  Convention 
of  1787,  was,  as  already  intimated,  to  trans 
form  the  confederation  into  a  National  Gov 
ernment  vested  with  supreme  national  powers, 
co-extensive  with  national  interests,  and  so 
organized  as  to  be  able  to  enforce  its  authority, 
and  maintain  the  supremacy  and  uniformity  of 
its  constitution  throughout  the  Union. 

Mr.  Madison,  one  of  the  chief  architects  of 
that  temple  of  liberty,  after  alluding  to  the 
fact  that,  Avhile  local  power  was  left  with  the 
States,  all  national  power  had  been  transferred 
to  the  General  Government,  said:  "Nor  is  the 
Government  of  the  United  States  created  by 
the  constitution,  less  a  Government  in  the  strict 
sense  of  the  term,  within  the  sphere  of  its  pow 
ers,  than  the  governments  created  by  the  con 
stitution  of  the  States  are  within  their  several 
spheres.  It  is,  like  them,  organi/.ed  into  Leg 
islative,  Executive  and  .Judieiarv  departments. 
It  operates,  like  them,  directly  on  persons  and 
things.  And,  like  them,  it  has  at  command,  a 
physical  force  for  executing  the  powers  com 
mitted  to  it." 

"Between  these  different  constitutional  gov 
ernments,  the  one  operating  in  all  the  States, 
the  others  operating  separately  in  each,  with 
the  aggregate  powers  of  government  divided 
between  them,  it  could  not  escape  attention 
that  controversies  would  arise  concerning  the 
boundaries  of  jurisdiction,  and  that  some  pro 
vision  ought  to  be  made  for  such  occurrences. 
A  political  system  that  does  not  provide  for  a 
peaceable  and  authoritative  termination  of  oc 
curring  controversies,  would  not  be  more  than 
the  shadow  of  a  government — the  object  and 
end  of  real  government  being  the  substitution 
of  law  and  order,  for  uncertainty,  confusion, 
mid  violence.  That  to  have  left  a  h'nal  decis 
ion,  in  such  cases,  to  each  of  the  States,  could 
not  fail  to  make  the  constitution  and  laws  of 
the  United  States  different  in  different  States, 
was  obvious;  and  not  less  obvious  that  this 
diversity  of  independent  decisions  must  alto 
gether  distract  the  government  of  the  Union, 
and  speedily  put  an  end  to  the  Union  itself. 
A  uniform  authority  of  the  laws  is  itself  a  VI 
TAL  principle.  Some  of  the  most  important 
laws  could  not  be  partially  executed.  They 
must  be  executed  in  all  the  States,  or  they 
could  be  duly  executed  in  none.  An  impost 
or  an  excise,  for  example,  if  not  in  force  in 
.some  States,  would  be  defeated  in  others.  It 
is  \vell  known  that  this  was  among  the  lessons 
of  experience  which  had  a  primary  influence 
in  bringing  about  the  existing  constitution." 

"The  constitution,  for  its  safe  and  success 
ful  operation,  has  expressly  declared,  on  the 
one  hand, 

1st.  "That  the  constitution  and  the  laws 
made  in  pursuance  thereof,  and  all  treaties 


made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land." 

2nd.  "That  the  Judges  of  every  State  shall 
be  bound  thereby,  any  thing  in  the  constitution 
or  laws  of  any  State,  to  the  contrary,  not 
withstanding." 

3d.  That  the  judicial  power  of  the  United 
States  shall  extend  to  all  cases  in  law  and 
equity  arising  under  the  constitution,  the  laws 
of  the  United  States,  and  treaties  made  under 
their  authority,  &c." 

"On  the  other  hand,  as  a  security  of  the 
rights  and  powers  of  the  States  in  their  indi 
vidual  capacities,  against  an  undue  preponder 
ance  of  the  powers  granted  to  the  government 
over  them  in  their  united  capacity,  the  consti 
tution  has  relied  on 

1st.  "The  responsibility  of  the  Senators  and 
Representatives  in  the  Legislature  of  the 
United  States  to  the  Legislatures  and  people 
of  the  United  States." 

2nd.  "'The  responsibility  ofthe  President  to 
the  people  ofthe  United  States." 

3rd.  "The  liability  of  the'  Executive  and 
Judicial  functionaries  of  the  United  States,  to 
impeachment  by  the  Representatives  of  the 
people  of  the  States,  in  one  branch  of  the 
Legislature  ofthe  States,  and  trial  by  the  Re 
presentatives  of  the  States  in  the  other  branch 
— the  State  functionaries,  Legislative,  Execu 
tive,  and  Judicial,  being,  at  the  same  time,  in 
their  appointment  and  responsibility,  altogeth 
er  independent  of  the  agency  or  authority  of 
the  United  States." 

•'Those  who  have  denied  or  doubted  the  su 
premacy  of  the  Judicial  power  of  the  United 
States,  and  denounce  at  the  same  time,  a  nul 
lifying  power  in  a  State,  seem  not  to  have  suf 
ficiently  adverted  to  the  utter  inefficiency  of  a 
supremacy  in  a  law  of  the  land,  without  a  su 
premacy  in  the  exposition  and  execution  of  the 
law — nor  to  the  destruction  of  all  equipoise 
between  the  Federal  Government  and  the 
State  Govei-emcnts,  if,  whilst  the  functionaries 
of  the  Federal  Government  are,  directly  or  in 
directly,  elected  by,  and  responsible  to  the 
States,  and  the  functionaries  ofthe  States  are, 
in  their  appointment  and  responsibility,  wholly 
independent  of  the  United  States,  no  constitu 
tional  control  of  any  sort  belonged  to  the 
United  States  over  the  States.  Under  such 
an  organization,  it  is  evident  that  it  would  be 
in  tbe  {tower  of  the  States  individually,  to  pass 
unauthorized  laws,  and  to  carry  them  into 
complete  effect,  anything  in  the  constitution 
and  laws  of  the  United  States,  to  the  contra 
ry,  notwithstanding.  This  would  be  a  nulli 
fying  power  in  its  plenary  character;  and 
whether  it  had  its  final  effect  through  the 
Legislative,  Executive,  or  Judiciary  organ  of 
a  State,  would  be  equally  fatal  to  the  consti 
tuted  relations  between  the  two  governments." 
In  the  39th  number  of  "Publius,"  on  the  au 
thority  of  whose  expositions  the  constitution 
of  the  United  States  was  ratified  by  the  peo 
ple  of  several  States,  may  be  seen  the  following 


252 


INTRODUCTORY  LECTURE, 


stereotyped  confirmation  of  the  foregoing  views 
of  Mr.  "Madison:  "It  is  true  that,  in  controver 
sies  relating  to  the  boundary  between  the  two 
jurisdictions,  the  tribunal  which  is  ultimately 
to  decide,  is  to  be  established  under  the  general 
government.  But  this  does  not  change  the 
principle  of  the  case.  The  decision  is  to  beicr» 


any  crime  not  specified  in  the  powers  enu 
merated  in  the  constitution—  and  it  concludes, 
therefore,  that,  as  the  counterfeiting  of  the 
notes  or  securities  of  the  Bank  of  the  United 
States,  is  an  offence  created  only  by  act  of 


Congress,  without  express  and  specific  pow- 
was  unconstitutional  and  void; 


impartially  made  according  to  the  rules  of 
the  constitution;  and  all  the  usual  and  most 
effectual  precautions  are  taken  to  secure  this 
impartiality.  Some  such  tribunal  is  clearly 
essential  to  prevent  an  appeal  to  the  sword  and 
a  dissolution  of  the  compact;  and  that  it  ought 
to  be  established  under  the  general  rather  than 


and  on  that  assumption,  the  resolution  asserts 
that  each  of  the  States  had  the  reserved  and 
exclusive  power  to  make  such  counterfeiting  a 
crime  or  not,  and  to  prevent  it  or  not.  This 
ultra  doctrine  has  been,  for  more  than  half  a 
century,  universally  abandoned  as  absurd,  in 
consistent  and  destructive,  until  within  the 
present  year,  when  the  resolutions  of  '98 


under  the  local  governments— or,  to  speak  more  fncorpOrated  in  a  party  platform,  as  an  article 
properly,  that  it  could  be  safely  established  of  tjjc  creed  of  "progressive  democracy." 
under  the  first  alone,  is  a  position  not  likely  to  ]f  punishment  be  necessary  for  the  fulfilment 
be  combatted."  I  of  any  trust  devolved  on  Congress,  has  not 

That  any  act  of  Congress  unauthorized  by  that  department  constitutional  power  to  de- 
the  constitution  of  the  United  States  is  void,  no  I  fine  the  offence,  and  to  provide  for  the  inrlic- 
sound  jurist  can  deny  or  doubt.  But  who  is  to  jtion  of  the  punishment,  except  so  far  only 
decide  whether  the  act  be  unconstitutional  or  ' 


not? 


citizen  for  himself?      Then  we 


that  rssulting  power   may  have  'been  denied 
or   limited   by  the  express  provisions  of  the 


have  no  government,  or  he  is  above  it.  The  1  constitution?  '  One  illustration  may  be  sum- 
same  answer,  on  precisely  the  same  principle,  jcient  for  all  the  cases.  Congress  lias  express 
is  equally  true  and  effectual,  when  any  number  ("power  to  establish  post  offices  and  post 
of  citizens,  in  either  their  individual,  social,  or  roads,"  which  was  intended  to  mean  plenary 
political  capacities,  claim  the  right  of  final  and  and  exclusive  power  over  the  transportation  of 
authoritative  decision  for  themselves.  °''  effetinS  that  ljower' 


Then  it  is  not  true,  that  the  States,  in  their 
sovereign 

constitution  of  the  United  States,  and  are  the 
only  parties  to  it — it  is  not  true  that,  under 


that 


,  , 


obstruction  and  robbing-  of  the  mail  criminal 


political  capacity  alone,   made  the  osu 

r  £    i   cu  ,.  offences,  and  denounced  punishment  for  each 

of  th       nited  States  and  are  the  - 


ff 


micoiitutional?     It    cer- 


tainlv  would  be,  if  the  second  of  the1  resolu- 


that  constitution,  they  retain  independent  and  |  tions"  of  ,98  contains  somij_  constitutional 
plenary  sovereignty— it  is  not  true  that, for  de- 1  doctrine<  But  that  legislation,  though  not 
ciding  between  them  and  the  general  govern- ,  expressiv  authorized,  has  ever  been  held  and 
ment,  or  any  portion  of  the  people  and  the  gov-  considered  undoubtedly  constitutional  and 
eminent,  there  is  "no  common  judge"  provided  i  binding.  W  ithout  the  'right  thus  to '  protect 
by  themselves  in  their  charter  of  Union — it  is  |  a.ud  facilitate  the  transmission  of  intelligence 
indisputably  not  true,  therefore,  that  "each  and  of  money  by.  the  mails,  Congress  might  not 
party  has  a  right  to  judge  for  itself  as  to  infrac-  be  able  effectually  to  execute  the  high  trust  cle- 
tions,  as  well  as  the  mode  of  redress."  And,  volved  on  it  by  tiie  constitution;  and  it  would 
consequently,  the  first  of  the  resolutions  of '98, 1  be  inconsistent  wifh  the  purpose  of  tin-it  tni.-;, , 
the  only  foothold  of  nullification,  or  of  seces- ;  to  leave  the  mails  dependent^  on  State  power  or 
sion,  evaporates  into  detonating  and  pestilent  I  discretion.  Such  legislation  only  employs 


gas.  The  radical  error  of  that  resolution  — 
which  is  the  only  vital  principle  of  nullification 
—  was  exposed  and  denounced  by  the  famous 
proclamation  of  President  Jackson,  in  1832,  in 


which,  after  arguing  against  it  with  irresistable 
force,  he    concluded   as  follows:   "I  consider 


usual,  appropriate,  and  unprohibited  means 
for  effecting  the  ends  of  the  national  and  ex 
press  power  over  the  mails — that  is,  celerity, 
security,  punctuality,  and  uniformity  rr<1 

•---I...!.'     _  .    ~C    H\O    ....       ,„!,  ,!!„    :„_ 


two  resolutions  of  '98  arc  wholly  inconsistent 
with   the  theoretic  nationality  and  practical 

then  the  power  to  annul  a  law  of  the  United  supremacy  of  the  constitution—and  essential- 
c,.  .  -,  ,  .  ..t,  Iv  irreconcilable  with  the  admitted  existence 

States   assumed   by   one    State,  incompatible  j  ^  ary  powcr  of  a   government   of  the 

with  the  existence  of  the  union,  contradicted  |  ^  in  ^  Qn]  tme  ^  effectual  sense, 
expressly  by  the  letter  of  the  constitution,  |  either  naticmal  or  4leral.  The  practical  ap- 
unauthonzcd  by  its  spirit,  inconsistent  with  |  plicati()11  of  &e  principle  of  the  first,  would 
every  principle  on  which  it  was  founded,  and|feselye  tho  United  States  into  the  anarchy  of  a 
destructive  of  the  great  object  for  which  it  was  !merc  confederation  of  absolute  and  iudepen- 
made."  And  all  this  is  manifestly  true.  !  dent  state  sovereignties,  each  acting,  in  all 

The  second  of  the  resolutions  of  '98  is,  Ceases,  according  to  its  arbitrary  will;  and  the 
even  more  palpably,  indefensible  than  the  ( principle  of  the  second  would  withhold  from 
first.  It  proceeds  on  the  monstrous  assump-  the  general  government  (if  conceded  to  be 
tion  that  Congress  possesses  no  more  or  other  such  theoretically)  all  implied  powers,  or  all 
power  than  that  which  is  expressly  delegated; !  right  to  employ  means  for  executing  the  ex- 
for  it  asserts,  in  effect,  that  Congress  cannot  i  press  and  enumerated  powers.  It  is  evident, 
create  an  offence.,  or  prescribe  punishment  for  J  therefore,  that,  if  any  party  in  power  should 


DELIVERED  BEFORE  THE  LAW  CLASS. 


253 


uphold  those  destructive  principles,  and  -car-   Among  the  domestic  powers  those  are  exclu- 

ry  them,  out  in  practice",  the  late  compromise   ~~     *~*  ~"t"'~v :— 

laws  must  fail,  the  fugitive  slave  law  must  be 
come-  a  mockery,  the  hydra  of  nullification 
and  secession  will  be  installed  as  .a  political 
divinity,  and  the  Union  itself  must  inevitably 


sive — 1st.  which  are  given  in  exclusive  terms — 
as  the  express  power  to  exercise  "exclusive 
legislation"  over  .the  District  of  Columbia,  and 
over  territory  purchased  for  forts,  arsenals, 
nd.  "Which,  though  given  in  general 


and  speedily  fall  into  imbecility,  distraction,  I  terms,  are  expressly  prohibited  to  the  Slates— 
and  hopeless  ruin.  |  as  the  unqualified  power  to  regulate  commerce, 

Bat  each    of  those  heresies  is,  we  trust,  a.s   and  the  express  interdiction  against  the  laying- 
unacceptable   to   the   intelligence  and  patri-   of  any  duty  on  exports  or  imports  by  a  State, 


otism  of  the  freemen  of  the  United  Slates,,  as 


except  for  inspection  purposes.    3rd.  Which, 


they  are  absurd  and  licentious.  j  though  neither  given  in   exclusive  terms,  nor 

The  powers  of  the  government  of  the  United  j  expressly  prohibited  to  the  States,  could  not 
States  are  altogether  national — embracing  ex-  j  be  concurrently  exercised  by  a  State  without 
elusive  control  over  all  the  concerns  of  peace  j  impairing  or  frustrating  the  object  of  delega 


and  war,  intercou.se,  right,  and  obligation,  as 
between  our  Union  as  a  nation  and  foreign  na 
tions,  and  including  also  all  domestic  inter- 


ting  it  to  the  general  government — as  the  power 
to  establish  a  uniform  rule  of  naturalization," 
the  citizens  of  each  State  being  entitled,  by  an 


ests  in  Avhich  the  people  of  the  States,  or    of  j  express  provision  of  the  Constitution,  to  the 
more    States    than    one,    are   concerned — the  privileges  and  immunities  of  citizens  in  the 


ig  aii  powers  exclusively  local, !  several  States,  and  the  great  object  of  confer- 
the    internal    economy  of  each   ring  on  Congress   a  power  so 
Stale    separately  and  alone.     l\o  such   local  j  cional  being  altogether  irncompatibie  with  the 


btutes  retaimn 
or    affecting 


-nliallv  na- 


power  has  been  delegated  to  the  government  [power  of  local  legislation  over  it.  All  domes- 
of  the  United  States,  nor  is  any  such  national  j  tic  powers  which  are  delegated  to  Congress,  un- 
power  retained  by  The  States  as  separate  gov-  affected  by  either  of  those  three  tests,  are  con- 
ernments.  Tiiis  theory  is  as  philosophical  as  structively  reserved  to  the  States  concurrently 
it  is  simple  and  beautiful — and  it  is  the  only  i  with  the  general  government. 
one  consistent  with  the  preservation  of  the  i  But,  as  a  law  constitutionally  enacted  by 
Union,  in  peace  and  harmony,  or  with  the  j  Congress  is,  by  the  Constitution  itself,  declared 
Declaration  of  Independence,  or  the  Ameri-  j  tube  "the  supreme  law  of  the  land,"  conse- 
can  notion  of  the  representative  principle.  So  j  quently,  whenever  Congress  shall  have  passed 
far  as  the  interests  of  the  people  of  different  i  a  law  on  a  subject  of  concurrent  legislative 
States  may  be  affected  by  legislation,  the  le-  :  authority,  any  inconsistent  law  of  a  State 
gislative  power  ought  to  belong  to  the  com-  ,  iLen  existing  on  the  same  Kiibjecr,  will  be 
mon  counsels  of  all  concerned.  E"o  one  State  j  constructively  abrogated,  and  no  State  can 
ought  to  possess,  or  desire  10  exercise  cou-  !  enact  any  law  on  that  subject,  as  long  as  that 
trol  orer  the  affairs  or  the  rights  of  the  people  j  of  Congress  shall  remain  iu  force  This  may 
of  other  States — and  neither  equal  justice,  nor  i  be  illustrated  by  the  power  expressly  given 
political  union  could  be  secured,  uuless  the  to  Congress t<!  establish  "uniform  laws  on  the 


aggregate  will  of  the  people  of  the  United 
States,  should  be  the  regulator  and  guardian 
of  their  common  rights,  as  one  nation  for  all 
common  purposes.  And  in  harmony  with, 
this  theory,  an  analysis  of  the  national  con 
stitution  will  show  that  all  powers  necessary 
for" the  union  and  nationality  of  the  people  of 
the  United  States  it  delegates  to  the  general 
government,  and  reserves  to  each  State  all 
power  exclusively  local— each  being  a  sover 
eign  within  its  prescribed  sphere,  the  gov 
ernment  of  the  Union  possessing,  in  all  cases 
of  conflicting  claims  to  power,  the  ultimate 
supremacy  as  declared  by  the  constitution  of 
the  United  States;  and  without  which  authori 
ty  it  could  not  be  a  sovereign,  armed  with 
power  to  effectuate  the  great  object  of  its  insti 
tution.  And,  though  it  possesses  no  power 
except  what  is  delegated  by  its  constitution, 
yet,  as  it  has  the  inherent,  as  well  as  declared, 
right  10  employ  all  the  means  "necessary  and 
proper,"  for  fulfilling  the  ends  of  its  express 
powers,  incidental  or  implied  powers,  co-exten 
sive  with  those  means,  are  as  much  delegated 
as  the  enumerated  and  specific  powers  them 
selves. 

Some  of  the  constitutional  pOAvers  of  the 
general  government  aie  exclusive — others  con 
current,  All  its  foreign  powers  are  exclusive. 


subject  of  bankruptcies  throughout  the  United 
States" — which  has  been  construed  to  be  a  con 
current  power,  given  to  Congress  for  no  other 
purpose  than  that  of  the  advantage  of  having, 
on  that  subject,  one  uniform  national  law 
whenever  Congress  shall  deem  it  prudent  and 
beneficial.  In  reference  to  mat  power,  the  ju 
dicial  and  practical  construction  has  been, 
that,  until  Congress  has  passed  a  general 
bankrupt  law,  each  State  lias  a  right  to  enact 
special  laws  for  itself  on  the  subject  of  insol 
vency  and  bankruptcy;  that  a  general  law 
enacted  by  Congress,  abolished  all  existing 
State  laws  on  the  same  subject — and  that, 
when  such  Congressional  enactment  expired, 
or  was  repealed,  the  right  of  each  Slate  to  leg 
islate  on  ihe  subject  was  revived.  And  this  is 
true  of  all  power  concurrently  possessed  by 
the  States  and  by  the  general  government. 

The  modes  of  interpreting  the  powers  of  the 
general  government  are  various  and  contrarient 
— different  processes  leading  to  essentially 
different  results.  And  on  that  subject,  poli 
ticians,  as  a  class,  differ  widely  from  jurists  as 
a  class.  The  Constitution  of  the  United  States 
should,  like  that  of  a  Slate,  be  construed  in 
such  a  manner  as  will  be  most  likely  to  fulfill 
the  intentions  of  those  who  made  it.  And  the 
proper  mgde  of  attaining  that  end,  is  to  con- 


254 


INTRODUCTORY  LECTURE, 


sider,  in  a  liberal  temper  of  candor  and  patri 
otism,  the  letter,  the  spirit,  the  context;  and,  if 
any  difficulty  or  doubt  shall  still  exist,  to  ex 
plore  the  objects,  and  history  of  its  adoption, 
and  the  analogies  of  judicial  and  practical 
expositions  of  it.  It  should  never  be  strin 
gently  construed  like  a  penal  statute,  but  al 
ways  more  liberally,  as  the  charter  of  a  great 
public  trust  for  the  welfare  of  the  people,  and 
for  the  maintenance  of  the  harmony  and  jus 
tice  of  the  Union;  and  as  the  best  safeguard, 
therefore,  of  liberty,  peace,  and  security. 
And,  as  for  those  objects,  certain  great  powers 
were  wisely  surrendered  by  the  several  States, 
and,  for  the  better  and  more  uniform  fulfill 
ment  of  their  ends,  confided  to  the  more  pater 
nal  government  of  the  Union,  representing  all, 
and  accountable  to  all  concerned  in  the  faith 
ful  administration  of  its  high  trusts — and,  as 
the  people  of  the  States  are  altogether  depend 
ent  on  their  common  government,  for  the  exer 
cise  of  those  powers,  and  the  beneficial  ful 
fillment  of  those  trusts,  such  a  construction 
should  be  given  to  the  Constitution  as  to  make 
all  such  powers  as  plenary,  efficient,  and  be- 
nificent  as  the  public  good  may  seem  to  re 
quire.  Such  has  been  the  habitual  and  more 
authoritative  construction.  The  power  "to 
establish  post  offices  and  post  roads,"  might 
be  literally  interpreted  to  mean  nothing  more 
than  to  designate  the  places  fbr  those  offices 
and  the  routes  of  travel  for  the  mails;  but  it 
has  been  invariably  construed  as  authorizing 
Congress  exclusively  and  imposing  on  it  the 
sole  duty,  to  regulate  and  control  the  entire 
postal  transmission  of  intelligence  throughout 
the  Union — and  the  powers  for  securing  that 
great  national  object,  have  been  conceded  to  be 
as  comprehensive  as  the  object  itself,  and  as 
plenary  as  each  State  might  have  possessed 
them  for  itself,  within  its  own  limits  before  it 
surrendered  and  transferred  them  to  the  gov 
ernment  of  the  United  States. 

The  power  "to  regulate  commerce  with  for 
eign  nations,"  might  be  interpreted,  by  a  strict 
constructionist,  as  meaning,  according  to  its 
precise  literal  import,  only  a  power  to  pre 
scribe  the  rules  of  commercial  intercourse — for 
to  regulate  literally  means  to  prescribe  rules. 
But  the  object  of  delegating  that  power  was  to 
deprive  the  States  of  all  authority  over  foreign 
commerce,  and  vest  in  the  general  govern 
ment,  as  their  only  international  organ,  all 
sovereignty  over  it,  excepting  only  so  far  as 
the  delegated  power  may  be  expressly  limited 
by  the  provisions  of  the  Constitution.  The 
United  States,  as  our  only  nation,  has  as  much 
power  over  our  commerce  with  foreign  na 
tions,  as  any  other  independent  nation  on  earth 
can  have  over  its  own  commerce,  with  the  ex 
ception  only  of  the  restrictions  expressed  in 
the  Constitution  as  to  equality  and  uniformi 
ty  among  the  States.  England,  like  other  ab 
solute  sovereignties,  has  unquestioned  power 
to  close  her  ports  against  the  world,  or  to  ad 
mit  importations  on  her  own  terms — and  the 
power  consequently  to  protect  and  encourage 
her  own  industry  and  productions,  against 
foreign  rivalry,  by  the  imposition  of  discrimi 


nating,  or  even  prohibitory  dxities  on  the  im 
portation  of  foreign  fabrics,  or  commodities. 
Have  not  the  United  States  the  same  power? 
In  their  commercial  intercourse  with  England 
have  they  not  equal  rights?  May  they  not 
retaliate  legislation  against  legislation?  And 
is  there  a  rational  doubt  that  they  may  impose, 
to  any  extent,  duties  on  English  products,  or 
manufactures,  for  the  purpose  of  developing 
their  own  latent  resources,  promoting  domes 
tic  industry,  and  securing  wealth  and  inde 
pendence  at  home?  The  people  of  the  States 
have  no  such  power.  Was  it  nullified  or  crip 
pled  by  the  adoption  of  the  Constitution  of 
the  United  States?  Certainly  not;  but  it  was 
all  only  transferred  to  the  general  government. 
This  is  not  only  self-evident,  but  illustrated 
by  non- intercourse  and  embargo  laws,  and 
laws  for  the  avowed  purpose  of  promoting  our 
own  manufactures,  by  the  imposition  of  du 
ties  on  foreign  articles  of  the  same  kind,  and 
laws  also  for  protecting  our  own  agriculture 
and  commercial  marine — all  of  which,  except 
the  embargo  and  non-intercourse,  were  com 
menced  the  first  year  of  Washington's  admin 
istration,  and  continued  down  through  every 
succeding  administration. 

The  general  power  to  regulate  foreign  com 
merce  has  been  also  always  construed  as  in 
cluding  power  to  give  facility  and  security  to 
that  commerce,  by  erecting  light-houses, 
making  brakewaters,  and  improving  bays, 
harbors,  Ac.,  on  our  maratime  frontier.  And 
the  same  principle  and  process  extend  the  cor 
relative  power,  to  regulate  commerce  between 
the  States,  to  the  improvement  of  interior  lakes 
and  rivers.  This  is  just  as  indisputable  as  the 
other,  and  nearly  as  well  illustrated  by  legis 
lative  history. 

These  liberal  interpretations  of  express  pow 
ers,  Deyond  their  literal  imports,  are  justified 
by  the  objects  of  those  powers,  and  required 
by  the  interests  for  the  protection  and  ad 
vancement  of  which  they  were  surrendered  by 
the  States  and  delegated  to  the  national  gov 
ernment;  and  a  more  restrictive  interpretation 
would  tend"*to  the  frustation  of  the  purposes 
for  which  the  people  of  the  Union  established 
and  acceded  to  the  Constitution  of  the  Union. 

If  the  powers  granted  to  the  general  govern 
ment  by  its  organic  law  were  essential — as 
they  certainly  were  and  ever  must  be — to  the 
maintenance  of  the  Union,  and  the  security 
and  promotion  of  its  objects,  it  is  the  highest 
political  interest,  as  well  as  duty,  of  us  all,  to 
sustain  them  in  good  faith,  and  never  to  attempt 
to  curtail  or  paralyze  any  one  of  them  on  any 
occasion,  or  for  any  temporary,  partial,  or  lo 
cal  purpose. 

If,  as  will  not  be  denied,  undivided  nation 
ality,  as  between  us  and  foreign  nations,  be  de 
sirable,  no  rational  patriot  can  hesitate  to  ad 
mit  that,  to  that  end,  a  national  government, 
vested  with  supreme  and  exclusive  authority 
over  all  our  international  interests  and  rela 
tions,  must  be  indispensably  necessary.  For 
the  purpose  of  consolidating  such  an  union  of 
the  people  and  the  States,  the  Constitution  of 
the  United  States  was  adopted,  and  ostab- 


DELIVERED  BEFORE  THE  LAW  CLASS. 


255 


lished  such  a  government,   delegated  to  it  all  j  State  surrendered  the   essential  attributes  of 
such  powers,  and  organized  it  in  such  a  man- 1  sovereignty,  and,  by  delegating  them  to  their 


ner  as  to  give  assurance  of  stability,  unity, 
and  responsibility.  And,  therefore,  all  pow 
er  over  the  international  concerns  of  com 
merce,  treaties,  peace,  and  war,  are  delegated 
by  the  Constitution  to  the  general  government 
thus  constructed.  To  that  extent,  or  for  any 
such  purpose,  the  States,  as  such,  possess  no 
conflicting  or  antagonistic  power;  nor  could 
they,  so  far,  hare  retained  their  sovereignty 
consistently  with  the  objects  of  the  Constitu 
tion.  And  consequently,  not  only  do  all  those 
great  national  powers  and  trusts  belong  to  the 
general  government,  but,  with  them,  are  del 
egated  all  the  unforbidden  means  of  com 
pletely  fulfilling  the  benificent  ends  for  which 
they  were  confided. 

And,  to  maintain  internal  peace,  concord, 
and  justice — each  indispensable  as  an  element 
of  union — it  was  clearly,  not  useful  merely, 
but  necessary  to  delegate  to  the  government 
of  that  Union,  powers  over  and  co-extensive 
with  those  ends,  and  protective  of  the  common 
interests  of  the  whole  people  as  one  united  na 
tion.  Hence,  among  the  expressly  delegat 
ed  powers,  we  find  the  following:  1st.  To 
lay  and  collect  taxes,  imposts,  (fee.,  for  the  pur 
pose  of  paying  the  debts,  and  providing  "for 
the  common  defence  and  general  welfare."  2d. 
To  regulate  commerce  not  ttnly  with  foreign 
nations,  but  "among  the  several  States,  and 
with  the  Indian  tribes."  3d.  "To  establish 
an  uniform  rule  of  naturalization,  and  uni 
form  laws  on  the  subject  of  bankruptcies 
throughout  the  United  States."  4th.  "To 
coin  money,  regulate  the  value  thereof  and  of 
foreign  coin,  and  fix  the  standard  of  weights 
and  measure" — an  uniform  national  currency, 
and  a  national  standard  of  weight*  and  meas 
ures,  being  useful  to  the  internal  commerce 
and  harmony  of  all  portions  of  the  Union.  5th. 
"To  establish  post  offices  and  post  roads"— 
the  transmission  of  intelligence  by  the  mail 
•  being  a  national  affair  of  common  concern  to 
the  people  of  all  the  States.  6th.  "To  pro 
vide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and 
repel  invasions"— and  to  provide  for  organiz 
ing,  arming,  and  "disciplining  the  militia." 
And,  to  illustrate  the  same  object  of  depriving 
the  States  of  any  power,  the  exercise  of  which 
might  frustrate  the  contemplated1  purposes  of 


the  Union,  and  of  vesting  the  government  of 
the  Union   with 


common  and  only  national  government,  depos 
ited  them  on  the  altar  of  union.  And  we  may 
rest  assured,  that  no  less  a  sacrifice  of  local 
power  and  pride  could  have  assured  the  great 
objects  of  every  patriot — national  independence, 
liberty  and  peace. 

We  cannot  fail,  also,  to  see  that  the  asserted 
sovereignty  of  the  individual  States  is  altogeth 
er  irreconcileable  with  the  provisions  of  the 
Constitution  of  all  {he  people  of  all  the  States, 
and  would,  if  acknowledged,  or  usurped,  lead 
to  anarchy,  confusion,  and  civil  war;  to  pre 
vent  all  of  which  calamities,  the  wisdom  of  our 
fathers  adopted  the  Constitution,  and  estab 
lished  the  government  of  the  United  States. 
And,  as  an  inevitable  consequence,  we  must 
all  see  that  secession  and  nullification  are 
revolutionary,  and  not  constitutional,  remedies 
for  any  local  or  personal  grievance,  whether 
imaginary  or  actual. 

If,  in  adopting  the  resolutions  of  '98,  the 
Kentucky  Legislature  intended  to  assert  either 
of  those  ultra-unconstitutional  remedies,  our 
respect  for  the  memory  of  that  baud  of  patri 
otic  pioneers,  would  incline  us  to  ascribe  the 
political  error  to  the  then  crude  and  unsettled 
theories  as  to  the  fundamental  principles  of 
the  Constitution — to  veneration  approaching 
idolatry,  which  the  leading  men  of  our  com 
monwealth  then  felt  for  the  opinions  of  Mr. 
Jefferson — to  an  unlucky  sentiment  of  jealousy 
and  disaffection  towards  the  general  govern 
ment,  resulting  from  its  imputed  neglect  in 
respect  to  the  navigation  of  the  Mississippi, 
and  the  Indian  dcpraclations  in  the  West,  and 
which,  before  they  had  been  entirely  healed, 
had  been  greatly  inflamed  by  the  alien  and 
sedition  laws — and  lastly,  to  their  impatient 
anxiety  to  put  down  those  obnoxious  enact 
ments.  But,  it  is  not  improbable,  that  a  ma 
jority  of  the  members,  who  voted  for  those  res 
olutions,  did  not  foresee  all  the  consequences 
which  might  flow  from  the  assertion  that  the 
States,  as  such,  were  the  parties  to  the  national 
constitution — that  there  was  no  common  judge 
— and  that  each  party  had  a  right  to  judge  for 
itself,  as  in  every  other  case  of  compact  be 
tween  equals  and  sovereigns.  Nevertheless, 
however  all  this  may  be,  there  can  be  no 


doubt  that  both  secession  and  nullification,  as 

.1  power  necessary  to  the  j  constitutional    remedies,     necessarily     result 
we  find  that  the  national  from  the  foregoing  principles    announced  in 
the  first  of  the  resolutions  of '98. 
Nor  can   there  be  a  rational  or  consistent 


preservatioi 

constitution   guaranties   to    every    citizen  of 

every  State,  equal  civil  "privileges  and  inimu- 


nities"  in  each  State,  and  security  against 
any  expost  facto  act,  or  act  impairing  the  obliga 
tion  of  contracts;  and  also  prohibits  each 
Srate  from  laying  any  duty  on  exports  or  im 
ports,  and  from  coining  money,  making  treat 
ies,  emitting  bills  of  credit,  or  making  any 
thing  but  gold  and  silver  a  tender  in  the  pay 
ment  of  debts — or  keeping  any  troops  or  ships 
of  Avar  in  time  of  peace. 

We  thus  see  that,  in  adopting  the  Constitu 
tion  of  the  United  States,  the  people  of  each 


doubt  that  it  was  not  the  natural  right  of  revo 
lution,  but  a  political  right  to  nullify,  for 
which  that  resolution  insisted.  No  citizen  de 
nies  or  doubts  that  the  people  have  an  inhe 
rent  and  inalienable  right  to  upset  their  consti 
tution,  or  revolutionize  their  government — 
and  therefore;  Mr.  Jefferson  cannot  be  pre 
sumed  to  have  intended  to  announce  and  argue 
to  prove  that  uncontroverted  privilege.  Be 
sides,  the  resolution  asserts  that  each  State,** 


256 


INTRODUCTORY  LECTURE, 


a  co-equal  party  to  the  Constitution,  has  the 
right  to  decide  on  the  Constitution  for  itself, 
and  that  the  general  government  has  no  such 
ultimate  right.  And,  consequently,  he  must 
hare  intended  to  say,  as  he  did  undoubtedly  say 
in  effect,  that  each  State  had,  under  the  Consti 
tution,  and  according  to  the  Constitution,  the 
asserted  rights;  and  which  is  nothing  more  or 
less  than  the  absurdity  that  a  State  can,  at  the 
same  time,  be  a  party  to  the  Constitution,  and 
above  the  Constitution — in  the  Union  and  out 
of  the  Union:  a  suicidal  solicism  that  Kentucky 
would  now  be  the  last  to  admit  and  the  first  to 
oppose. 

Considering,  in  the  spirit  cither  of  political 
philosophy,  or  of  wise  statesmanship,  the 
structure  of  our  national  and  local  govern 
ments — the  history  of  their  progress — the  <1e- 
pendencc  of  the  former  on  the  latter — the  in 
fluence  of  local  sympathies  and  attachments — 
the  responsibility  of  the  national  functionaries 
to  the  people  of  the  States,  and  the  irrespon- 
sibilitv  of  the  State  functionaries  to  the  au 
thorities  of  the  Union — there  can  be  but  little 
doubt  that  the  father  of  his  country  %vas  right 
when  he  declared  that  there  was  more  danger 
of  disunion  than  of  consolidation — that  there 
is  more  of  centrifugal  tendency  in  the  States 
than  of  centripital  attraction  in  the  General 
Government.  And  docs  not  our  political  his 
tory,  and  especially  the  recent  portion  of  it, 
almost  demonstrate  the  prophetic  wisdom  of 
that  opinion? 

To  prevent  the  catastrophe  of  a  dissolution, 
by  secession,  or  nullification,  it  is  necessary 
that  all  the  powers  of  the  general  government 
should  be  recognized,  and  faithfully  and  fully 
maintained.  Such  a  national  and  patriotic 
course,  characterized  by  a  becoming  spirit  of 
mutual  moderation  and  forbearance  in  the  ex 
ercise  of  conflicting  powers  claimed  by  the 
States  and  the  General  Government,  and  a 
prudent  abstinence,  by  each,  from  the  exercise 
of  such  power  as  may  be  seriously  doubted, 
may  long  preserve  our  union  and  liberty,  and 
peacefully  advance  our  beloved  country  in  its 
career  of  substantial  prosperity  and  true 
glory. 

Our  organic  institutions  have  survived  many 
trials  of  their  purity  and  strength.  They 
have  been  saved  by  the  heroic  patriotism  of 
such  men  as  Washington,  and  Clay,  and 
Webster,  and  Cass,  and" Foote.  But  the  signs 
of  the  times  portend  an  approaching  crisis 
more  decisive  of  their  fate,  than  any 
through  which  thay  yethave  passed.  Foreign 


influence  and  foreign  politics  are  taking  root 
in  the  virgin  soil  of  American  Republics. 
The  old  world,  oppressed  with  the  incubus  of 
a  restless  and  starving  population,  is  striving 
to  empty  itself  on  the  new — and  many  of  our 
politicians  invite  the  disgorgement  and  claim, 
for  the  parvenues  of  all  grades,  the  privilege 
of  ruling  the  children  of  the  American  stock 
of  patriots  and  statesmen,  who  achieved  our 
independence,  founded  our  institutions,  and 
consolidated  our  liberties:  The  federal,  against 
the  national  principle  is  revived  and  boldly 
challenges  popular  fuvor — and  reckless  prop- 
agandism,  abolitionism,  frcesoilism,  nullifica 
tion,  and  secession,  seem  to  have  grounded 
their  arms  only^  as  many  fear,  to  embrace 
each  other  and  prepare  for  a  fraternal  crusade 
against  the  peace  and  integrity  of  the  Union. 
If  there  ever  was  a  time  which  called,  in  tones 
of  thunder,  for  the  proclamation  of  true  Amer 
ican  principles,  invoking,  by  the  memory  of 
the  past,  and  the  perils  of  the  present,  and  the 
hopes  of  the  future,  the  manly  patriotism  of 
every  true-hearted  American  citizen,  that  time 
is  NOW.  On  you,  and  such  as  you  promise 
to  be,  mainly  rest  the  destinies  of  our  heaven- 
blessed  land.  Search  for  the  truth — learn 
your  duties  to  country  and  posterity,  and  act 
like  men  knowing  then1  rights  and  determined 
to  maintain  them — conscious  of  their  dut\, 
and  resolved  to  perform  it  to  the  uttermost. 

In  a  former  introductory..  I  endeavored  to 
establish  the  fundamental  principle  and  object 
of  the  Constitution  of  the  United  States,  and 
to  expose,  as  palpably  inconsistent  with  both, 
the  doctrines  of  nullification  and  secession. 
In  this  inaugural  address,  it  has  been  my  pur 
pose  to  present  to  you,  a  comprenhensive  out 
line  of  the  powers  of  the  government  of  the 
Union,  and,  incidentally,  to  add  further  illustra 
tions  of  the  principles  vindicated  in  that 
other  address.  For  your  more  perfect 
satisfaction  and  assurance,  on  these  vital  top 
ics,  I  recommend  to  your  careful  considera 
tion,  the  far  more  authoritative  facts  and  ar 
guments  to  be  found  in  the  "Madison  Papers'' 
— the  "Letters  of  Publius" — the  judicial  ex 
positions  of  the  Constitution  by  the  Supreme 
Court  of  the  United  States,  whilst  John  Mar 
shall  was  Chief  Justice;  and,  above  all, 
the  history  of  the  model  administration  of  the 
first  and  model  President  of  the  United  States 
— the  true  exemplar  of  a  wise  and  faithful 
President  of  a  Constitutional  Republic — "the 
Father  of  hi<  Country"— GEORGE  WASH 
INGTON. 


PRELECTION. 


LEXINGTON,  KY.,  November  20,  1854. 

JUDGE  ROBERTSON — Dear  Sir:  The  Law  Class  of  Transylvania  Univer 
sity  respectfully  solicit  a  copy  of  your  Introductory  Address,  of  the  9th 
inst.,  for  publication.  WELLLINGTON  HARLAN, 

ROBERT  C.  FLOURNOY, 

Committee. 


LEXINGTON,  KY.,  November  21,  1854. 

GENTLEMEN:  Our  last  Introductory  Lecture  was  not  prepared  for  any 
other  publication  than  that  of  its  delivery  in  your  presence.  But,  in 
deference  to  your  expressed  wishes  in  behalf  of  the  Law  Class,  I  surren 
der  it  to  you  to  be  disposed  of  as  you  may  think  best. 

Yours,  respectfully,  G.  ROBERTSON. 

Messrs.  HARLAN  and  FLOURNOY,  Committee. 
33 


INTRODUCTORY     LECTURE. 


Inaugural  addresses  iu  the  Law  Department 
of  Transylvania  are  intended  to  be  introducto 
ry  to  the  didatic  course  of  the  succeeding  ses 
sion.  Our  subject  on  the  present  occasion  is 
therefore  jurisprudential,  or  political  rather; 
and  we  fear  that  it  will  not  be  attrective  to 
many,  and  especially  to  the  fair  of  our  audit 
ors. 

No  branch  of  American  Jurisprudence  is  so 
important,  or  is,  therefore,  so  interesting  to 
every  citizen  of  the  United  States  as  our  or 
ganic  institutions — all,  whether  social  or  civil, 
founded  on  equal  rights  and  moved  and  sus 
tained  by  the  settled  opinion  of  the  majority 
of  citizens.  How  that  motive  power  is  polit 
ically  organized  and  how  it  should  govern  ac 
cording  to  the  principle  and  spirit  of  the  con 
stitution  of  the  United  States,  is  a  vital  ques 
tion  of  Union  and  Liberty,  the  practical  solu 
tion  of  which  will  test  the  durability  and  fix 
the  value  of  American  Democracy. 

And  this  is  our  theme. 

The  first  instinct  of  our  race  is  selfish — the 
next  social:  society — indispensable  to  civiliza 
tion — cannot  exist  without  the  guardianship 
of  government,  which,  to  be  either  rational  or 
hopeful,  must  be  adapted  to  the  moral  condi 
tion'  and  genius  of  the  people.  If  they  are 
sufficiently  equal  in  moral  power  and  suffi 
ciently  virtuous  and  enlightened  to  maintain 
justice  and  stability,  organized  Democracy  is 
the  legitimate,  and  best  form,  but,  for  a  peo 
ple  of  an  opposite  character,  it  would  be  the 
worst. 

As  the  best  and  wisest  men  often  err  in  feel 
ing  and  in  judgment,  no  form  of  Democracy 
would  be  sound  or  safe,  among  any  people,  un 
less,  by  some  fundamental  organization,  it  se 
cures  individuals  and  minorities  against  the 
occasional  passions  and  delusions  of  a  domi 
nant  majority,  however  it  may  be  constituted 
or  however  high  may  be  its  moral  grade.  That 
democratic  form  which  recognises  the  political 
equality  of  all  the  citizens,  must,  to  secure  the 
ends  of  all  good  government — peace,  justice 
and  liberty — be  se  organized  as  to  prevent  the 
transient  errors  of  the  numerical  majority  from 
doing  mischief  before  tho  sober  reason  of  the 
commonwealth  can  be  brought  wholesomely 
to  operate.  This  is  proved  by  the  imperfec 
tions  of  our  race  in  its  best  temporal  state, 
as  well  as  by  the  history  of  all  popular  gov 
ernments  on  earth.  He  who  denies  it  virtually 
denies  the  necessity  of  any  civil  government, 
and  he  who  doubts  it  is  no  statesman,  and 
should  never  be  a  law-giver. 

The  founders  of  our  religious  and  political 
liberty  felt  tbafc  great  truth  aa  self-evident; 


and,  guided  by  its  light,  ns  their  pole-star, 
they  framed  the  constitution  of  the  American 
Union  on  principles  of  practical  wisdom  as 
well  aa  the  dictates  of  universal  benevolence. 

This,  an  analysis  of  their  great  work  will 
abundantly  prove. 

Our  declaration  of  independence  recognises 
and  proclaims  the  great  phenominal  truth  that 
till  American  citizens  are  entitled  to  equal  po 
litical  privileges,  and  that  any  just  govern 
ment  among  them  must  be  instituted  by  them 
selves,  as  co-equals,  and  solely  for  the  benefit 
and  security  of  each  and  all  of  them.  Instruct 
ed  in  the  principles  of  civil  and  religious  lib 
erty,  trained  in  habits  of  social  and  political 
equality,  and  practiced  in  local  self-govern 
ment,  as  they  had  been  in  their  colonial  pupil 
age  for  more  than  three  generations;  the  ma 
jority  felt  that  they  were  prepared,  if  men  on 
earth  could  be  qualified,  for  such  popular  in 
stitutions;  and,  .consequently,  in  their  State 
and  National  constitutions,  they  determined 
to  try  the  experiment  of  such  self-govern 
ments  on  the  basis  of  the  representative  prin 
ciple  qualified  and  guarded  by  organic  checks 
and  balances.  Taught  by  enlightened  reason 
and  their  own  experience,  as  well  as  by  the 
history  of  past  ages,  that  a  pure  Democracy  ia 
both  impracticable  and  unsafe  and  could  nev 
er  accomplish  the  ends  of  any  just  govern 
ment,  they  had  discovered  that,  to  combine 
stability  and  security  with  universal  liberty 
and  equality,  fundamental  limitations  on  the 
legislative  will  of  the  majority  are  indispen 
sable. 

Y7hiie  they  knew  that,  when  in  a  state  of 
natural  freedom,  the  numerical  majority  neces 
sarily  have  the  right  to  establish  the  organic 
law,  and  that  a  dissentient  minority  must. 
therefore,  either  acquiesce  in  the  form  thus 
adopted  or  become  expatriated,  they  also  saw 
that  practical  government  would  often  deviate 
from  the  track  prescribed  by  any  theoretic  form 
which  should  leave  to  the  majority  legislative 
omnipotence.  No  prudent  man  would  prefer 
such  &  delusive  form,  nor  could  a)iy  just  man 
live  under  it  long  in  either  peace  or  safety. 
The  great  desideratum  therefore  was  such  an 
organism  as  would,  as  far  as  human  contri 
vance  could,  leave  to  each  citizen  all  the  natu 
ral  right  and  to  the  majority  all  the  political 
power  consistent  with  the  security  of  the  mi 
nority,  however  small  or  unpopular.  This  h 
the  most  difficult  problem  in  Republican  gov 
ernment,  and  has  never  yet  been  solved  unless 
its  solution  may  be  found  in  our  Anglo-Amer 
ican  constitution. 

The  first  object  of  the  conititution  of  th« 


ON  POPTOAB 


United  States  waa  to  consolidate  the  people  of 
these  states  into  one  nation,  and  only  one  na 
tion,  for  all  foreign  and  international  purposes, 
and  also  for  all  domestic  purposes  involving 
the  harmony,  justice,  and  integrity  of  the 
Union,  or  in  which  no  one  state  should  be  ex 
clusively  concerned.  To  effect  that  aim  the 
next  object  was  to  establish  a  national  gov 
ernment  with  powers  co-extensive  with  the 
end,  and  so  organized  as  to  secure  their  prac 
tical,  to  the  full  extent  of  their  theoretic,  su 
premacy,  and,  consequently,  divest  the  State 
governments  of  all  antagonistic  sovereignty. 
And  the  next  object  was  to  secure  the  peo 
ple  of  the  Union  and  States  against  any  abuse 
or  usurpation  of  power  by  the  General  Gov 
ernment,  or  by  its  organs  or  functionaries.  To 
effectuate  these  objects  the  organic  structure  is 
skillful  and  elaborate:  1st,  the  government  of 
the  Union  is  endowed,  to  the  extent  of  its  na 
tionality,  with  all  the  functions  of  the  most 
absolute  sovereignty,  Legislative,  Judicial, 
and  Executive — 2d,  to  prevent  concentration 
and  preserve  a  safe  equilibrium,  each  of  these 
functions  is  confided  to  a  separate  department 
of  magistracy,  each,  to  a  conservative  extent, 
made  independent  of  the  others,  and  intended, 
to  the  like  extent,  to  be  above  popular  passion 
and  te  act  in  defiance  of  it,  so  as  to  assure  the 
prevalence  of  reason,  the  reign  of  wisdom,  and 
the  maintenance  of  justice  and  order.  Each 
of  these  three  organs  represents,  and  one  in 
ec[ual  degree  with  another,  the  popular  sover 
eignty;  the  legislative,  when  acting  within  its 
prescribed  sphere,  exercises  the  legislative 
function  of  the  people  of  the  United  States; 
the  Judiciary,  when  it  decides  en  and  applies 
the  law  in  a  case  within  its  jurisdiction,  ex 
ercises  the  judicial  function  of  the  same  peo 
ple;  and  the  Executive  magistracy,  under  the 
like  circumstances,  exercises  the  executive 
function.  Consequently,  every  constitutional 
act  of  either  of  these  organs  of  the  people  of 
the  United  States  is,  for  the  oecasioa,  deemed 
to  be  the  echo  of  the  rectified  popular  voice, 
and  is,  politically,  the  act  of  the  cohstituent 
body.  Wherefore,  the  act  of  each,  within  its 
prescribed  sphere,  is  as  supreme  a&  the  power 
of  the  "original  and  ultimate  sovereign,  the 
people,  could  make  it;  and,  the  constitution  be 
ing  fundamental  and  inviolable,  every  such 
authoritative  act  is  a  supreme  law  to  all  the 
functionaries  of  tlie  general  and  the  local  gov 
ernments  and  to  every  citizem  of  every  State 
and  of  the  United  States — when  the  Judiciary 
pronounces  a  judgment,  it  is  as  much  the  sen 
tence  of  the  people  of  the  United  States  as 
any  executive  or  legislative  act  could  be  deem 
ed  to  be  their  act.  Tho  Judiciary,  like  Con 
gress  and  the  President,  is  the  people's  ap 
pointed  organ  of  ene  of  the  three  elementary 
functions  cf  all  sovereignty.  And  in  a  consti 
tutional  sense  and  for  every  legal  purpose,  the 
peoplo  speak  as  authoritatively  through  their 
courts  as  tkcy  do  through  their  Congress  or 
their  President.  The  Legislative,  therefore, 
izpotthe  supreme  power;  but-it  is  «.;suprerne 
power.  It  is  the  constitutional  exponent  of  the 
sovereign  will  of  the  constituent  naas»  in  the 


enactment  of  law.  But  the  Judiciary  is  equal 
ly  a  supreme  power,  and  equally  utters  th* 
constitutional  and  sovereign  judgment  of  th* 
same  constituency  in  the  exposition  and  ad 
ministration  of  all  the  laws  of  the  Union  in 
every  judicial  case.  One  of  these  departments 
is  as  supreme  as  the  other;  the  one  representing 
the  organic  sovereignty  of  the  people  in  their 
Legislative  function,  and  the  other  represent 
ing  their  organic  sovereignty  in  their  judicial 
function;  and  HO  political  organizatioa  can  be 
theoretically  wise  or  practically  safe,  unless  it 
confides  each  of  those  distinct  functions  to 
separate  organs  of  the  people  and,  to  a  con 
servative  extent,  makes  them  independent  of 
each  other,  and  so  far  independent  also  of  the 
passions  of  any  ascendant  party  as  not  to  be 
afraid  to  do  their  duty  as  contemplated  by  the 
founders  of  the  government.  The  constitu 
tion  of  the  United  States  is,  organically,  a 
beautiful  illustration  of  this  great  principle 
of  political  liberty. 

Fundamental  guarantees  of  cardinal  rights, 
and  limitations  on  legislative  power,  are  de 
signed  to  restrain  the  governing  majority.  If 
that  majority,  through  its  legislature,  should 
violate  any  of  these  guarantees  or  overleap  any 
of  those  limitations,  the  constitution  would 
only  mock  the  outraged  citizens  unless  it  had 
provided,  for  their  security,  a  tribunal  vested 
with  power  and  armed  with  the  will  to  pro 
nounce  the  unconstitutional  enactment  void, 
and  to  prevent  the  enforcement  of  it.  An  en 
lightened,  conscientious,  and  intrepid  judici 
ary  is  the  oaly  safe  depository  of  that  power. 
Any  legislative  act  inconsistent  with  the  con 
stitution  is  necessarily  void,  and  therefore, 
cannot  be  law;  because  the  legislature,  deriv 
ing  all  its  authority  from  the  constitution,  can 
not  make  that  a  law  which  is  prohibited  by 
the  charter  of  its  power,  the  organic  will  of 
the  people,  which  is  supreme  over  all  and  in 
violable  by  all. 

And  the  Judiciary,  appointed  to  utter  and 
uphold  the  law,  must  necessarily  decide  that  a 
legislative  act  conflicting  with  the  constitution 
is  not  law,  but  that  the  constitution  inviolate 
is  the  supreme  and,  to  the  extent  of  the  con 
flict,  the  only  law.  All  men  being  frail  and 
fallible,  and  the  best  of  them  being,  in  some 
degree,  under  the  influence  of  interest  and 
ambition,  no  Judge,  who  ia  dependent  on  a 
bare  popular  majority  for  his  office  and  its 
emoluments,  can  be  expected,  always  or  very 
often,  to  enforce  law  or  sustain  the  constitution 
against  the  interest  or  the  will  of  that  same 
dominant,  and,  often,  prescriptive  majority. 
And  therefore  Judges  of  the  United  States  are 
appointed  by  the  President  and  Senate,  to 
hold  their  offices  during  good  behavior,  and 
cannot  be  removed  except  on  impeachment  sus 
tained  by  two-thirds  of  the  Senate.  _  The  Ju 
diciary  is  thus  placed  by  the  constitution  above 
the  power  of  the  majority.  Some  such  funda 
mental  anchorage  is  indispensable  to  security 
and  stability^against  the  passions  and  occa 
sional  errors  of  the  majority  of  any  free  peo 
ple  entitled  to  universal  suffrage.  The  legis 
lative  majority  cannot  safely  possess  the  judi- 


lOTKODtrCTORY  LECTURE,  DELIVERED 


oial  power  or  the  right  to  control  it.  Such  an 
unchecked  authority  might  soon  paralyze  all 
the  guarantees  and  limitations  of  the  constitu 
tion. 

The  same  conservative'  principle,  though 
not  so  manifestly,  is  yet  as  essentially,  em 
bedded  in  the  organization  of  the  legislative 
department.  The  constitution  of  Congress — 
the  mode  of  electing  the  two  separate  branch 
es — the  terms  for  which  the  members  of  each 
branch  are  elected — and  the  concurrent  sanc 
tions  required  for  any  legislative  act,  were, 
each  and  all,  designed  for  assuring  more  in 
telligence,  deliberation  and  care,  than  could  be 
expected  in  the  constituent  masses,  under  the 
most  auspicious  circumstances;  and  the  pur 
pose  of  all  this  elaboration  of  checks  on  igno 
rance,  passion,  and  precipitancy,  was  to  save 
legislation*  from  the  instability,  imperfections, 
and  errors,  incident  to  all  popular  masses  of 
all  grades  of  intelligence  and  degrees  of  vir 
tue — but  few  individuals  of  them,  feeling 
proper  responsibility,  and  still  fewer  possess 
ing  the  qualities  of  wise  or  competent  law 
givers — and,  altogether,  therefore,  if  each  were 
a  Plato,  an  unsafe  legislative  body.  Even  a 
single  representative  assembly,  especially 
when  multitudinous,  is  an  unsafe  depository 
of  legislative  power.  This  has  been  demon 
strated,  as  in  revolutionary  France,  by  all  such 
bodies  in  every  country  and  in  every  age 
which  has  tried  the  hopeless  experiment.  And, 
consequently,  the  constituent  body  itself,  more 
numerous  and  excitable,  feeling  less  responsi 
bility,  more  subject  to  commotion,  and  alloy 
ed  with  much  larger  infusions  of  ignorance 
and  passion  than  any  chosen  assembly  of  se 
lect  representatives,  must  always  be  incompe 
tent  for  wise  and  just  legislation.  The  repre 
sentative  is,  therefore,  a  vital  principle  of  a 
Republic:  and  a  division  of  the  Legislature 
into  two  independent  branches,  &o  constituted 
as  that  each  may  operate  as  a  check  on  the 
other,  is  not  much  less  necessary  and  useful. 
This  theory  is  exemplified  and  commended  by 
all  the  constitutions  of  the  States,  as  well  a*s 
by  that  of  the  Union.  The  constitution  of  the 
United  States,  much  more  impressively  than 
that  of  any  one  of  the  States,  stereotypes  the 
conviction  of  its  architects  and  approvers,  that 
the  safety  of  the  people  and  the  integrity  of 
the  Union  require  a  Senate  so  elected  and  so 
constituted  as  to  feel,  in  a  much  less  degree 
than  the  popular  branch,  the  contagious  sen 
timents  aad  passions  of  the  constituent  mass 
es.  That  such  was  the  chief  purpose  of  the 
peculiar  organization  of  the  Senate  of  the 
United  States  is  not  only  obvious  on  the  face 
of  the  constitution  itself,  but  is  proved  by  the 
following  extracts  from  the  debates  on  that 
subject  in  the  Federal  Convention.  On  a  pro 
position  to  elect  Senators  for  nine  years,  Mr. 
Madison  said: — "In  order  to  judge  of  the  form 
to  be  giren  to  this  institution,  it  will  be  proper 
to  take  a  view  of  the  ends  to  be  served  by  it. 
These  were,  first,  to  protect  the  people  against 
their  rulers — secondly,  to  protect  the  people 
against  the  transient  impressions  into  which 
they  themselves  might  be  led.  A  people  de 


liberating  In  a  temperate  moment  and  with  the 
experience  of  other  nations  before  them,  on 
the  plan  of  government  most  likely  to  secure 
their  happiness,  would  first  be  aware  that 
those*  charged  with  the  public  happiness  might 
betray  their  trust.  An  obvious  precaution 
against  this  danger  would  be  to  divide  the 
trust  between  different  bodies  of  men  who 
might  watch  and  check  each  other. 

"It  would  next,  occur  to  such  a  people  that 
they  themselves  were  liable  to  temporary  er 
rors  through  want  of  information  as  to  their 
true  interest;  and  that  men  chosen  for  a  short 
time  and  employed  but  a  small  portion  of  that 
in  public  affairs,  might  err  from,  the  samo 
cause.  This  reflection  would  naturally  sug 
gest  that  the  government  be  so  constituted  aa 
that  one  of  its  branches  might  have  an  op 
portunity  of  acquiring  a  competent  knowl 
edge  of  the  public  interests.  Another 'reflec 
tion  equally  becoming  a  people  on  such  occa 
sion  would  be  rhat  they  themselves,  as  well 
as  a  numerous  body  of  representatives,  were 
liable  to  err  from  fickleness  and  passion.  A 
necessary  fence  against  this  danger  would  bo 
to  select  a  portion  of  enlightened  citizens, 
whose  limited  number  and  firmness  might 
seasonably  interpose  against  impetuous  coun 
sels.  It  ought,  finally,  to  occur  to  a  people  de 
liberating  on  a  government  for  themselves,  that, 
as  different  interests  necessarily  result  from 
the  liberty  meant  to  be  secured,  the  major  in 
terest  might,  under  sudden  impulses,  be 
tempted  to  commit  injustice  on  the  minority. 
How  is  this  danger  to  be  guarded  against  on 
the  republican  principles?  How  is  the  dan 
ger,  in  all  cases  of  interested  coalitions  to  op 
press  the  minority,  to  be  guarded  against? 
Among  other  means,  by  the  establishment  of 
a  body  in  the  government  sufficiently  respect 
able  for  its  wisdom  and  virtue  to  aid  on  such 
emergencies  the  preponderance  of  justice  by 
throwing  its  weight  into  that  scale.  Such  be 
ing  the  objects  of  the  second  branch  in  tho 
proposed  government,  he  thought  a  considera 
ble  duration  ought  to  be  given  to  it.  He  did 
not  conceive  that  the  term  of  nine  years  could 
threaten  any  real  danger — that,  as  it  was  more 
than  probable  that  we  were  now  digesting  a 
plan  which,  in  its  operation,  would  decide  the 
fate  of  republican  government,  we  ought  not 
only  to  provide  every  guard  to  liberty  that  its 
preservation  could  require,  but  be  equally 
careful  to  supply  the  defects  which  our  own 
experience  had  particularly  pointed  out." 

Govorneuer  Morris,  speaking  of  the  object  of 
the  Senate  said:— "What  is  this  object?  To 
check  the  precipitation,  changeableness,  and 
excesses  of  tho  first  branch.  Every  man 
of  observation  had  seen,  in  the  democratic 
branches  of  the  State  Legislature, 'precipita 
tion — in  Congress  (then  consisting  of  only 
one  body)  changeableness — in  every  depart 
ment  excesses  against  personal  liberty,  private 
property,  and  personal  safety." 

The  convention  having  fixed  six  years  as 
the  Senatorial  term,  and  Mr.  Ellsworth  having 
proposed  that  the  Senators  should  be  paid  by 
their  respective  States,  Mr.  Madison  said,  on 


oir  POPtfLAR 


S61 


that  proposition,  that  he  "  considered  this  as  a 
departure  from  a  fundamental  principle,  and 
subverting  the  end  intended  by  allowing  the 
Senate  a  duration  of  six  years.  They  would, 
if  this  motion  should  be  agreed  to,  hold  their 
places  during  pleasure ;  during  the  pleasure 
of  the  State  Legislatures.  One  great  end  of 
the  institution  was  that,  being  a  firm,  wise, 
and  impartial  body,  it  might  not  only  give 
stability  to  the  general  government  in  its  ope 
rations  on  individuals,  but  hold  an  even 
balance  among  different  states.  The  motion  j 


representative.  Even  as  to  this  branch,  it  wa» 
contemplated  by  the  framera  of  the  constitu 
tion  that  the  most  competent  men  would  bo 
chosen,  and  would,  on  all  their  responsibilities, 
do  whatever,  in  their  honest  and  considerate 
judgments,  would  be  best  for  their  whole 
country,  which,  when  elected,  each  of  them 
represents,  and  to  which,  therefore,  each  of 
them  must  be,  and  should  feel  himself  to  be, 
responsible.  The  theory  of  the  constitution 
is  that,  through  this  organ,  as  well  as  through 
others,  the  crude  mass  of  popular  feeling  and 


would  make  the  Senate,  like  Congress  (the  opinion,  when  not  well  digested,  should  be 
continental,)  the  mere  agents  and  advocates  of  [secreted  and  rectified,  so  as  to  make  the  sober 


State  interests  and  views,  instead  of  being  the 
impartial  umpires  and  guardians  of  justice 
and  general  good." 

These  were  the  sentiments  and  objects  of 
those  who  made,  and  of  those  who  ratified  the 
constitution.  In  the  letters  of  Publius,  expo 
sitory  of  the  principles  of  the  constitution,  and 
of  the  objects  of  its  various  provisions, — and 
on  the  authority  of  which  exposition  the  peo 
ple  ratified  what  the  federal  convention  had 
done, — the  following,  among  other  corrobora 
tive  views,  were  presented  : 

In  the  63d  number,  the  authors,  after  urg- 


reason  of  the  Commonwealth  the 
guardian   of  the   Commonwealth. 


ruler  and 
And,    ac 


cording  to  that  theory,  neither  the  passion, 
nor  opinion,  nor  wish  of  the  popular  majority 
ought,  in  the  first  instance,  always  to  prevail 
in  their  own  House  of  Representatives.  But 
the  practical  check  through  this  branch  is  not 
equal  to  the  theoretic  purpose.  Still,  however, 
it  has  been  sometimes  felt  and  sometimes 
blessed.  But,  anxious  to  entrench  the  consti 
tution,  with  ail  its  guarantees  of  right  and  all 
its  promises  of  justice  and  peace,  behind  bar 
riers  as  sure  as  possible  consistently  with  th« 


ing,  on  various  grounds,  the  utility  of  a  stable  !  ultimate  and  wholesome  power  of  the  majority, 
body  constituted  like  the  Senate,  add  the  fol 


lowing  consideration  :  "  For  a  people  as  little 
blinded  by  prejudice  or  corrupted  by  flattery 
as  those  whoa)  (we)  address,  (we)  shall  not 
scruple  to  say,  that  such  an  institution  may  be 


and  fearful  that  both  Congress  and  the  Judi 
ciary,  as  respectively  organized,  might  not 
always  be  sufficient  for  that  purpose,  the  fe 
deral  convention  and  the  concurring  people 
gave,  to  the  President,  the  authority  TO  pre- 


sometimes  necessary  as  a  defence  to  the  peo-  j  vent  acts  concurred  in  by  less  than  two-thirds 
pie  against  their  own   temporary  enors  and   of  each  House  of  the  National  Legislature, — 


As  the  cool  and  deliberate  sense  of  Alexander  Hamilton,  Rufus  King,  0' over 
ity  ought,  in  all  governments,  and  j  Morris,  James  Wilson,  and  other?  of  the 


irneur 
con- 


delusions. 

the  community 

actually  will  in  free  governments,  ultimately]  mention,  supposed  to  aim  at  aristocratic  tend- 

prevail  over  the  views  of  its  rulers,  so  there  jencies,  aclvo:a  ed  an  absolute  veto.     While  Dr. 

are  particular  moments  when  the  people,  stim- 1  Franklin,  Roger  Sherman,  George  Mason,  and 

ulated    by  some    irregular  passion  or   some  i  others  more  imbued  with  the  spirit  of  Demo- 


illicit  advantage,  or  misled  by  the  artful  mis 
representations  of  interested  men,  may  call 
for  measures  which  they  themselves  will  after 
wards  be  the  most  ready  to  lament  and  con- 
demo.  In  these  critical  moments,  how  salutary 
will  be  the  interference  of  a  temperate  and  re- 


cracy,  were  opposed  to  any  veto  by  the  Presi- 
For    compromising   these    conflicting 


dent. 


views,  James  Madison  and  Eibridge  Gerry  re 
commended  the  qualified  velo,  as  afterwards 
adopted.  But  the  avowed  object  of  all  who 
voted  to  vest  that  power  in  the  President  was 


spectable  body  of  citizens  in  order  to  check  j  to  arm  him  with  the  means  of  defending  the 
the  misguided  career,  and  suspend  the  blow  j  Executive  against  encroachments  by  either  of 
meditated  by  the  people  against  themselves,  j  the  other  Departments,  and  also  of  aiding  the 
until  reason,  justice  and  truth  can  regain  their  Judiciary  in  preventing  the  enforcement  of 
authority  over  the  public  mind  1"  |  unconstitutional  acts  of  Congress  ;  and  most 

veto 
,and 


Thu  biennial  term  of  service  was  fixed  with  :  act  of  the  Parliament  of  England  had  been 
the  view  of  enabling  the  members  of  the  House  !  vetoed  by  the  crown  since  the  year  1 694.  But 
of  Representatives  to  acquire  useful  expert- ;  the  prophecy  has  not  been  fulfilled.  And 
ence  in  the  forms  of  legislation,  and  ty  exhibit, :  there  may  now  be  some  reason  to  doubt  whe- 
to  each  other,  their  true  characters,  and  also  to  ther  the  danger  of  perverting  this  high  prero- 
relieve  them  from  unreasonable  apprehension  :  gative  and  of  thereby  frustrating  important 
of  being  proscribed  for  aomg  right— time  be-  i  public  policy  and  settled  public  opinion,  will 
ing  allowed  for  passion  to  subside  and  error  to  i  be  compensated  by  all  the  good  that  it  wa* 
be  corrected,  if  any  such  passion  or  error  should  |  ever  hoped  to  achieve.  Although  the  crown 
influence  the  electors  to  desire  a  course  of  con-  j  of  England  has  forborne  to  employ  thereto 
duct  inconsistent  with  the  general  welfare—  for  nearly  200  years,  yet  Republican  President* 
and  a  service  of  two  years  being  often  long  j  and  Governors  in  America  have  made  a  Quito 
enough  to  satisfy  the  taste  or  ambitiou  of  the  frequent  amd  familiar  use  of  it  for  the  last  25 


262 


I  INTRODUCTORY  LECTTTBS  DILIVEKED 


years.  The  disuse  of  it  in  England  has  re 
sulted  from  two  principal  causes;  1st:,  The 
patronage  of  the  crown,  which  enables  it,  by 
influence,  tocontrol  the  votes  of  many  members 
of  Parliament  so  as,  in  most  instances,  to  pre 
vent  measures  not  acceptable  to  Royalty  ;  2nd, 
The  prescriptive  power  of  the  Commons  to 
withhold  supplies;  which'Jias  been  success 
fully  used  for  ages  as  a  lever  for  sustaining 
and*  elevating  the  rights  of  the  people,  and 
for  making  public  opinion  effectual-  This  is 
iuore  than  Tribunitial  power.  It  is  a  power  to 
?tcp  the  wheels  of  Government,  and  starve  the 
Royal  Household  ; — it  is  the  club  of  Hercules 
uplifted  over  the  head  of  a  pigmy  ; — the  sword 
of  Damocles  pointed  at  the  heart  of  ambition: 
It  is  a  veto  over  a  veto.  When  the  Commons 
pass  a  popular  measure  and  ask  the  concur 
rence  of  the  crown,  they  tacitly,  but  quite  sig 
nificantly,  say  to  majesty,  "  approve  or  die, — 
give  your  royal  assent  or  we  will  withhold  all 
your  supplies  and  subject  you,  not  only  to  hu 
miliation,  but  to  dependence  and  destitution." 
And  this  is  the  chief  cause  of  the  veto's  long 
slumber  in  Eagland.  But,  under  our  consti 
tution,  the  President's  salary  cannot?  be  with 
held  ;  and  it  is  the  impel  ative  duty  of  Congress 

10  grant  all  other  necessary  supplies.     The 
British  wand  is,  therefore,  not  in  American 
hands.     But  the  patronage  of  our  President  is 
as  potent  as  that  of  an  English  King  or  Queen. 
By  a  dexterous  and  unscrupulous  use  of  it  he 
may   mould    Congress  to  his  will  and  even 
bring  a  majority  of  the  people  to  an  apparent 
r  pproval  of  an  arbitrary  veto  however  selfish, 
ungracious,  or  hurtful.     And  consequently,  as 
modern  history  proves,  public  opinion  has  not 
?••;    much    influence     on    elective    American 
President  as  it  has  on  the  hereditary  British 
n  i  on  arch . 

The  qualified  veto  here  is  practically  an  ab 
solute  veto.  No  President  has  yet  been  over 
ruled  by  the  constitutional  two-thirds — and 

11  o  President,  who  knows  how  to  exercise  power 
for  the  sinister  purpose  of  increasing  his  influ 
ence,  ever  will  be.     Had  our  fathers  of   '88 
foreseen  or  seriously  apprehended  such  a  result, 
they  never  would  have  permitted  the  >eto  or 
M-ft  it  unmuzzled  and  omnivorous  as  it  may  be 
likely  to  become.     They  intended  to  bridle  it 
f.o  as  to  keep  it  in  the  constitutional  track,  and 
their  journal' and  debates  show  that  they  in 
tended  to  preserve  Congress  from  the  vortex 
*f  Executive  patronage,  by  declaring  its  mem 
bers  ineligible  to  any  other  place  of  public 
trust  which  could  be  conferred  bv  the  Presi- 
cifnt  during  their  legislative  teriu.     Had  they 
persisted  in  that  determination,  and  especially 
had  they  extended  the  ineJigibilitryto  the  Pre 
sidential  term,  thtiy  would  have  made  repre 
sentatives  in   Congress  much   rnora  true  and 
f.-.ithful   t;>  their  constituent?,  than    many  of 
them  havtt  been,  or  will  ever  be,  as  long  as  a 
President  can  seduce  them  from  their  duty  to 
their  country  by  the  bait  of  ofiica  more  profita 
ble  or  attractive  than  their  seats  in  legislative 
chairs  of  uncertain  tenure.    But,  just  before 
the  close  of  the  Federal  Convention,  the  salu 
tary  interdict,  which  seemed  to  have  boen 


unanimously  favored  in  the  preceding  stages, 
wa<?  stricken  out  by  a  majority  of  one  on  a 
silent  vote.  And  that  inadvertent  act  left  the 
veto  almost  unchecked,  and  has  armed  the 
President  with  the  mean?  of  corrupting  Con 
gress,  and  of  either  moulding  public  opinion 
to  his  will  or  resisting  it  when  it  ought  to 
prevail.  And  thus  a  selfish  and  ambitious 
President  may  pervert  that,  which  was  in 
tended  as  a  wholesome  check  on  popular  hast® 
and  passion,  to  ends  incompatible  with  tho 
genius  of  our  institutions.  But  this  organic 
check,  as  provided  fey  the  constitution,  shows 
that  its  founders  were  anxious  to  erect  a  strong 
breakwater  against  the  tides  of  passion  which 
but  too  often  flow  from  unchecked,  excited, 
and  unreflecting  majorities. 

We  thus  see  how  the  people  of  ths  United 
States,  though  unequal  in  moral  power,  yet 
made  co-equal  in  political  rights,  organized 
the  numerical  majority  and  provided  fun 
damental  checks  on  its  inherent  authority,  for 
tha  purpose  of  preventing  hurtful  precipitancy 
in  public  opinion  and  of  securing  the  ultimate 
prevalence  of  intelligence  and  reason. 

Knowing  thtt  largo  portions  of  the  aggre 
gate  population  would,  if  let  alone,  be  incom 
petent  for  safe  self-government,  and  that  even 
those  classes  best  qualified  for  it  would  be  oc 
casionally  liable  to  passion  and  delusion,  our 
fathers  hoped  that,  in  this  virgin  land  of  pro 
mise,  universal  suffrage  might  be  tolerated  if 
so  organized  and  bridled  B.S  to  secure  to 
mind  its  just  influence  over  matter,  by  a  pro 
cess  of  filtration  which  might  afford  lime 
enough  for  sober  deliberation  and  for  cleans- 


e  of  self- 
government,  the  opinion  of  the  constituent 
majority,  rectified  by  distillation  through  the 
organs  provided  by  the  constitution, 
ought  to  rule.  By  thua  securing  time  for  de 
liberate  and  thorough  investigation,  and  foi 
l-he  prevalence  of  intelligence  over  ignorance 
and  of  reason  over  passion,  they  hoped  that 
the  opinion  of  those  numero  pluris  would  b* 
sufficiently  modified  by  that  of  those  virtuteet 
honore  majori.?.,  They  intended  that  the  crude 
aliment  of  public  opinion  should  be  elaborated 
and  assimilated  into  vital  intelligence  by  the 
digestive  organs  they  provided  in  their  con 
stitution.  And  they  expected,  of  course,  that, 
all  those  organs  would  be  functionally  sound, 
and  that  each  of  them  would  always  perform 
its  allotted  function  faithfully  and  whole 
somely.  Those  orgr.nsare  admirably  adapted 
to  promote  the  vitality  and  maintain  the  sta 
bility  of  political  liberty.  Eire  any  essential 
derangement,  in  their  naturai  functions  will 
rc-sult  in  unhealthy  secretions  tending  to  dis 
ease  and  death.  If  Congress  will  think  for 
its  country,  as  it  ought,  and  will  firmly  act  as 
it  thinks  will  be  best  for  that  country,"  if  tho 
judges  shall  be  wise  and  honest,  functionaries 
and,  looking'only  to  their  duties,  shall  uphold 
Justice  and  the  supremacy  of  the  constitution; 
and  if  the  President, 'like  Washington,  shall, 
in  all  hia  official  acts,  be  guided  by  an  on- 


Off  POPULAR  INSTRUCTIONS. 


263 


lightened  sense  of  the  public  interest,  and  a 
scrupulous  regard  to  his  constitutional  duties  ; 
then  each  department  will  fulfil  the  purposes 
for  which  they  were  organized.  And  then, 
especially  in  a  season  of  popular  effervescence, 
when  the  public  mind  is  not  sufficiently  in 
structed  or  too  much  agitated  for  safe  delibera 
tion,  the  impetuous  tide  will  be  stayed  by  some 
one  or  all  of  the  organic  barriers  provided  for 
all  such  occasions  by  the  constitution,  until  the 
people  shall  have  had  ample  time  to  become  dis 
passionate  and  well  informed,  when,  if  wrong 
in  the  first  instance,  they  will  escape  from  the 
consequences  of  their  error,  but  if  right  at 
first,  they  will  finally,  and  in  due  time,  effec 
tuate  their  deliberate,  persevering,  and  well 
considered  will.  This  is  the  theory  of  the 
constitution  as  beautiful  and  wise  as  it  is  ne 
cessary  and  conservative ;  this  is  its  vital 
principle  ;  and  this  is  its  first  object  and  its 
last  hope.  Without  it  Democracy,  even  of 
the  representative  type,  must  soon  become  an 
archy,  oligarchy,  or  autocracy  ;  but,  with  it, 
in  all  its  theoretical  purity  and  full  exempli 
fication,  the  greatest  degree  of  popular  liberty 
and  equality,  compatible  with  any  form  of 
human  fgovernment,  may  be  secured  and  en 
joyed.  This  is  proved,  not  by  our  own  expe 
rience  only,  but  by  the  history  of  our  race  in 
every  age.  Without  firm  and  effectual  restraints 
on  the  sudden  impulses  of  the  majority,  no 
popular  government  can  either  long  stand  or 
secure  the  rights  of  individuals  or  of  minori 
ties.  This  is  as  certain  as  .that  man  is  only 
man. 

But  a  pestilent  exotic  has  already  taken 
deep  root  in  the  heart  of  the  constitution;  and, 
if  it  live  and  grow,  it  will  paralyze  the  organic 
life  of  that  unequalled  political  structure.  Its 
germ,  planted  by  ambition,  has  been  watered 
by  charlatanism,  and  nourished  by  egotism. 
The  Demagogue  feeds  on  it;  and,  like  the  ser 
pent's  charm,  it  fascinates  and  decoys  but  too 
many  of  multitudes  who  do  not  understand 
the  spirit  and  object  of  the  constitution,  and 
have  only  an  imperfect  knowledge  of  the  phi 
losophy  ^of  organized  liberty.  It  is  called, 
"the  right  of  instruction" — a  popular  name 
which  imports  that  it  is  the  political  duty  of 
the  members  of  each  branch  of  Congress  to 
echo,  by  their  votes,  the  known  will  of  their 
electors.  The  sole  argument  in  support  of 
this  seductive  heresy,  though  to  the  superficial 
thinker  quite  specious,  will  not  stand  the  test 
of  severe  scrutiny.  Its  postulate  is  the  as 
sumption  that  the  representative  is  only  the 
substitute  of  his  electoral  constituents;  and  the 
conclusion  is,  that  he  should,  therefore,  as 
their  agent,  represent  their  will. 

It  will  be  our  purpose  to  suggest,  on  this 
inaugural  occasion,  some  general  considera 
tions  to  show  that  the  position  just  stated  is 
not  tenable,  and  that,  if  maintained,  it  would 
frustrate  the  aims  and  sap  the  foundations  of 
the  constitution. 

The  House  of  Representatives  will  be  first 
considered.  A  member  of  that  branch  of  Con 


gress  is  not  the  mere  agent  of  his  electors;  1st. 
because  they  were  appointed  to  elect  only  for 
the  purpose  of  convenience  and  policy.  All 
the  people  cf  the  U.  States  could  not  conveni 
ently  elect  all  the  members;  and  to  secure  the 
election  of  competent  members,  it  is  proper  that 
those,  who  can  know  the  candidates,  should  be 
trusted  with  the  choice,  and  that  the  person  cho 
sen  should  be  acquainted  with  their  local  want? 
and  interests.  But  every  member,  wheresoever 
and  by  whomsoever  chosen,  is,  when  elected,  a 
representative  of  all  the  people  of  the  United 
States;  he  should  consult  the  welfare  of  all; 
his  votes  affect  the  interests  of  all;  and  the 
laws,  which  those  votes  halp  to  enact,  operate 
on  all;  he,  therefore,  is  a  representative  of  the 
whole;  and  consequently,  so  far  as  popular 
interest  and  opinion  should  influence  his  public 
conduct,  he  should  consult  the  interest  and  the 
opinion  of  the  whole.  His  responsibility  is 
co-extensive  with  the  operations  of  his  acts; 
and  there  is,  therefore,  no  constitutional 
reason  why  he  should  obey  tho  voice  of  his 
electors,  rather  than  that  of  the  whole  constit 
uent  body  of  the  Union,  for  whom  they  elected 
him.  And  the  only  reason  why  he  would  do 
so,  is  merely  personal  and  selfish;  that  is, 
only  because  he  desires  to  be  re-elected. 

But,  if  the  member  could  be  deemed  tho 
substitute  and  agent  of  his  electors,  he  would 
be  under  no  political  obligation  to  vote  their 
sentiments;  1st.  because  his  rotes  operate  on 
his  own  interests,  as  well  as  on  theirs;  and  it 
is  indisputable  that,  when  an  agent  has  a  per 
sonal  interest  in  his  own  acts,  the  only  instruc 
tions  which  it  is  his  duty  to  obey,  aro  those 
given  in  the  charter  of  his  authority.  The 
Constitution  is  the  member's  charter,  and  he 
is  hound  by  no  mandate  from  any  other  and 
subordinate  source.  2nd.  One  of  the  chief 
objects  and  advantages  of  representation  ia 
the  benefit  flowing  from  argument,  delibera 
tion,  and  the  inter-communication  of  informa 
tion  among  the  members  of  the  representative 
body.  These  objects  will  be  frustrated  and 
these  advantages  will  be  thrown  away  by  sub 
servience  to  the  voice  of  the  electoral 'body; 
and  the  only  true  theory  of  such  instructions, 
therefore,  would  be,  that  the  member  should 
vote,  not  as  those  constituents  desire,  but  aa 
he  believes  they •  would  vote  had  they  been  in 
his  place  and  heard  all  that  he  had  heard. 
And  consequently,  if  he  even  acknowledged 
any  such  right  of  instruction,  he  might,  after 
voting  against  the  will  of  his  electors,  well 
and  truly  say,  "I  might  have  thought  as  you 
thought,  and  voted  as  you  desired,  had  I  been 
only  where  you  were,  and  heard  only  what 
you  heard;  but  I  have  been  convinced  by  ar 
guments  unheard  by  you,  and  facts  unknown 
by  you;  and  I  have  no  doubt  that,  had  you 
been  in  my  place,  you  too,  would  have  voted, 
as  I  felt  it  my  duty  to  you,  to  my  country,  and 
to  my  own  conscience,  to  vote;  wherefore,  I 
have  voted  as  your  representative  ought  to 
aare  voted,"  If  this  would  not  be  *  true  an4 


264 


INTRODUCTORY  LECTURE,  DELIVERED 


sufficient  answer  to  the  strictest  sect  of  in- 
stmctionists,  the  constitutional  organization 
of  the  representative  principle  would  be  a 
worthless  humbug. 

2nd.  It  is  admitted,  by  all  instructionists, 
that  a  member  is  not  bound,  by  any  form  of 
instructions,  to  vote  against  his  own  construc 
tion  of  the  constitution,  because  he  is  sworn  to 
support  the  constitution,  and  he  must  be  the  I 
keeper  of  his  own  conscience.  This  is  a  sur- 1 
render  of  the  whole  principle  of  the  doctrine 
of  instructions.  Every  member  is  also  pledged 
by  an  oath  to  be  true  and  faithful  to  the  Uni 
ted  States.  And  who  is  to  be  the  keeper  of 
his  conscience  as  to  what  is  such  fidelity?  If 
he  vote  against  his  own  conviction  of  the  in 
terest  of  the  Union,  is  he,  in  his  own  opinion, 
faithful  to  the  United  States?  Does  he  not,  in 
his  own  conscience,  violate  his  oath?  Does 
he,  in  his  own  judgement,  promote  the  gene 
ral  welfare;  and  is  it  not  his  unquestionable 
duty  to  endeavor,  in  his  whole  course,  to  do 
that,  on  all  his  responsibilities  to  his  electors, 
to  his  conscience,  and  to  his  whole  country? 
If  he  be  bound  to  act  as  the  mere  agent  of  his 
own  little  district  on  questions  of  vital  policy, 
is  he  not  equally  its  agent  in  every  vote  he 
may  be  called  to  give?  And  if,  consequently, 
his  vote  should  be  the  echo  of  that  district  on 
any  one  question,  should  it  not  be  so,  just  as 
much,  on  every  question  on  which  he  votes  as  its 
representative?  If  he  vote  only  as  its  substi 
tute,  its  will  should  equally  control  all  his 
votes.  Arid  the  concession  that  he  should 
vote  his  own  opinion  on  one  question  necessa 
rily  implies  that  he  should  do  it  on  every 
question. 

3.  Popular  instructions  are  scarcely  ever 
practicable,  and  will  always  be  liable  to  great 
abuse.  The  principle  is  that  the  will  of  the 
constituent  body  should  be  that  of  the  repre 
sentative.  If  the  constituent's  will  be  known 
or  inferred,  the  manner  of  communicating  it  is 
immaterial.  Formal  instructions  are  not  ne 
cessary,  and,  if  ever  attempted,  how  is  the 
member  to  know  that  they  are  "endorsed  by  a 
majority  of  his  electors,  or  what  influence  or 
management  procured  them,  or  how  well  those, 
who  might  have  concurred  in  them,  understood 
the  subject,  or  what  would  be  their  opinion  on 
full  discussion  and  grave  consideration?  And, 
when  there  is  no  express  instruction,  he  may 
be  misinformed  or  otherwise  mistaken  as  to 
the  opinion  of  his  constituents;  and,  in  every 
such  case,  such  mistake  might  be  a  good  plea 
for  a  bad  and  unpopular  vote.  The  doctrine 
of  instructions  impairs  proper  responsibility 
and  induces  temporizing  members  not  only  to 
feel  the  popular  pulse,  instead  of  their  own 
minds,  but  often  to  help  to  excite  pulsations 
in  unison  with  their  own  selfish  interest  or 
ambition.  It  relieves  lazy  and  timid  members 
from  the  superfluous  labor  and  responsibility 
of  thinking  for  themselves,  and  encourages  them 
to  become  servile  and  to  engage  in  the  vulgar 
trickery  of  prostituted  and  unprincipled  dem 


agogues,  instead  of  being,  as  they  were  de 
signed  to  be,  vigilant  sentinels  on  their  coun 
try's  watch-tower,  and  faithful  guardians  of 
their  country's  justice,  honor  and  peace. 
Moreover  it  would  not  only  be  incongruous, 
but  humiliating  and  unjust  to  require  a  mem 
ber,  and  especially  after  long  and  able  debate 
not  heard  by  his  constituents,  to  record,  for 
all  time,  as  his  opinion,  that  which  was  not 
bis  opinion,  and  at  the  absurdity  of  which  his 
conscience  and  judgement  revolted  when,  as  a 
poor  cuckoo,  he  mechanically  uttered  it  on  a 
call  for  the  yeas  and  nays.  Can  such  be  the 
imperative  political  duty  of  an  enlightened, 
honorable,  patriotic,  and  conscientious  mem 
ber  of  the  august  Congress  of  the  United 
States? 

4.  The  articles  of  Confederation  made  the 
delegates  to  Congress  dependent  on  their  res 
pective  States  for  their  compensation,  and  ex 
pressly  reserved  to   each  State  the  right  to 
recall  any  of  its  delegates  whenever  it  might 
choose  to  do  so.     This  made  each  delegate 
dependent  on  the  Avill  and  pleasure   of  his 
State.     But  the  constitution  of  the   United 
States  secures  to  every  member  of  Congress  a 
reasonable  compensation  out  of  the  National 
Treasury;  neither  his  State  nor  his  district  is 
bound  or  permitted  to  pay  him;  and  he  is  also 
entitled  to  hold  his  seat  for  a  prescribed  term, 
even  against  the  will  of  his  district  or  State. 
All  this  shows  that,  in  adopting  the  constitu 
tion,  the  people  intended  that  their  members 
in  Congress  should  not,  as  under  the  Confed 
eration,  be  dependent  on  them  or  subject  to 
their  control  otherwise  than  as  moral  influence 
and  responsibility  might  reasonably  operate. 

Besides,  the  constitution  guarantees  to  the 
people  the  right  to  assemble  peaceably  and 
petition  Congress  for  a  redress  of  Grievances. 
This  implies  a  conviction  that  the  people  had, 
and  should  have,  no  right,  by  instructions,  to 
compel  their  representatives  do  that  which  the 
constitution  was  so  careful  to  secure  to  them  a 
right  to  merely  to  petition  for. 

5.  The  assumed  mandatory  authority  of  in 
structions  makes  the  member  a  mere  automa 
ton,  often  a  puppet  in  the  hands  of  artful  wire- 
workers,  and  may  defeat  the  object  and  effect 
of  elaborate  discussion  and  consideration  of 
subjects  in  Congress.     The  member  may  feel 
that  it  would  be  idle  to  think  for  himself  if  he 
be  bound  to  act  as  others  may  choose  to  dic 
tate;  and  all  argument  addressed  to  him  will 
be  useless  if  it  shall  be  his  duty  to  vote  against 
the  light  shed  and  the  conviction  produced  by  it. 

6.  If  a'member  of  Congress  be  bound  by  in 
structions,  why  is  not  a  judge  equally  bound? 
The  Judge  is 'as  much  the  people's  organ  as 
the  Legislator  can  be.   Each  is  a  representative 
of  the  peoples  sovereignty,  and  the  only  differ 
ence  is,  that  one  represents  the  judicial,  while 
the  other  represents  the  legislative   function 
of  the  same  sovereign  over  both.     But  whoev^ 
er  presumed  to  think  that  a  judge  is  bound  to 
decide  an  public  sentiment  may  suggest?    It  U 


ON  POPULAR  INSTRUCTIONS. 


265 


his  duty  to  utter  the  law,  and  administer  jus 
tice  to  the  poor,  the  humble,  and  the  obnox 
ious,  as  well  as  to  the  rich,  the  exalted,  and 
the  popular,  in  defiance  of  public  opinion.  A 
Judge  who  will  not  do  this  is  unworthy  of  his 
trust,  and  perverts  the  great  object  of  it;  a  legis 
lator  is  equally  unworthy  who  fails  to  think 
independently,  and  refuses  to  act  according  to 
his  own  clear  opinion.  His  department  was 
organized  as  it  was,  and  he  was  elected  as  he 
was  for  two  years,  to  thus  think  and  thus  act, 
whenever  he  is  convinced  that  his  country's 
welfare  will  be  promoted  by  it. 

7.  But  the  most  comprehensive  and  conclu 
sive  argument  against  the  political  obligation 
of  popular  instructions  arises  from  the  organi 
zation  and  limitation  of  all  the  functions  of 
sovereignty  by  the  Constitution. 

If,  as  is  undeniably  implied  by  the  character 
of  the  constitution  and  proved  by  history  and 
the  leading  object  of  representation,  the  people, 
however  intelligent  and  virtuous,  cannot  di 
rectly  legislate  wisely  or  safely  in  primary 
assemblies,  do  not  the  causes  of  their  incapac 
ity  apply,  with  even  greater  certainty  and 
force,  to  their  less  considered  and  less  respon 
sible  instructions?  If  they  should  not  legis 
late,  should  they  control  those  who,  for  that 
very  reason,  were  chosen  to  make  law 
for  them'?  If  they  could  not  be  trusted  to 
make  law,  could  they  be  trusted  with  authori 
ty  to  compel  Congress  to  pass  a  law  which 
they,  themselves,  are  too  multitudinous,  incon 
siderate,  and  irresponsible,  in  primary  meet- 


philosophy  and  had,  by  his  patriotism,  rescued 
ais  countrymen  from  a  Catalinian  vortex. 

But,  had  right  and  justice  been  guarded, 
against  the  impulses  of  passion  and  the  delu 
sions  of  ignorance  at  Athens  and  at  Rome,  by 
such  organic  securities  as  those  provided  by 
our  admirable  constitution,  undisturbed  by 
popular  instructions,  the  dominant  party  would 
have  been  held  back  until  they  had  become 
cool  and  abjured  their  momentary  errors,  as 
they  soon  did;  and  organized  and  limited  De 
mocracy  would  then  have  escaped  the  suspi 
cion  cast  upon  it  by  those  democratic  out 
breaks  of  liberty  iinorganized  and  unchecked. 

If  Congress  must  speak  as  the  majority  feels, 
all  the  wonderful  machinery  of  our  national 
government,  organized  for  the  purpose  of  reg 
ulating  the  motive  power  of  public  sentiment, 
often  as  explosive  as  steam,  would,  in  time, 
be  rendered  powerless,  and  the  transient  pas 
sions  and  delusions  of  the  majority,  instead  of 
their  deliberate  reason  and  final  judgment, 
would  reign  unchecked  and  soon  drive  to  an 
archy,  revolution,  and  ruin.  To  avert  such  a 
catastrophe  was  the  object,  and  is  yet  the  hope, 
of  our  fundamental  distribution  and  organiza 
tion  of  the  power  of  ruling  majorities.  But 
the  popular  doctrine  of  instructions  is  a  cor 
morant  in  the  tree  of  life,  and  if  long  permit 
ted  to  live  and  feed,  will  surely  make  it  fruit 
less,  sapless — dead. 

The  only  constitutional  power  the  electoral 
constituency  can  have,  or  ought  to  have,  over 
a  member,  is  that  moral  influence  arising  from 
sympathy,  and  his  responsibility  to  censorship. 


ngs,  to  enact  wisely?     Moreover  liberty  will  be   Th     canneither  removc  nor  otherwise  control 


insecure,  and  justice  unsafe,  unless  the  popu 
lar  majority  are  subject  to  organic  checks 
which  will  compel  them  to  pause  and  soberly 
reflect.  And  the  objects  of  all  the  checks 
provided  by  the  constitution  may  be  defeated 
if  the  doctrine  of  instructions  shall  ever  be 
generally  recognized  and  carried  out  in  prac 
tice. 

With  such  barriers  around  them,  Theseus 


him  during  his  term. 

But  public  opinion,  however  formed,  is 
entitled  to  respect,  and,  when  deliberately 
made  up,  is  entitled  to,  and  will  always  com 
mand  a  great  degree  of  deference.  There  is 
no  danger  that  it  will  not,  in  any  of  its  multi 
form  phases,  be  sufficiently  respected  by  every 
functionary.  The  only  fear  is,  that  it  will 
have  on  all,  and  especially  those  of  the  legis- 


would  never  have  been  banished  from  his  conn-  native  department,  too  much  influence — more, 
try  by  an  Athenian  mob  excited  to  fury  by  the  i  much  more,  than  will  be  consistent  with  the 


primate     of     demagogues — Menesthcus;   nor 


spirit  and  ends  of  the  constitution.     The  great 


Socrates  doomed,  by  the  same  sort  of  a  ma-  danger  is,  not  that  representatives  will  wan- 
jority  of  numbers,  to  the  hemlock;  nor  Aris-  jtonly  contemn  deliberate  public  sentiment, but 
tides  to  ostracism;  nor  Cicero  to  exilement  by  that  they  will  be  too  much  influenced  by  evan- 
the  profligate  Clodius,  who  stooped  from  a  |  escent  popular  impulses,  and  will  be  governed 
a  patrician  to  a  plebian  rank,  to  deceive  and  'more  by  the  clamor  of  the  noisy  and  designing, 
lead  an  envious  and  ignorant  multitude.  On  !  than  by  "the  still  small  voice  of  reason,"  often 
all  those  memorable  occasions  of  reckless  modestly  whispered  by  the  honest  and  indus- 
popular  movement,  the  deluded  actors,  on  trious,  but  too  often  drowned  by  the  vocifera- 
sobcr  reflection,  repented.  They  built  a  mon- -  tions  of  demagogues  and  their  Praetorian 
ument  to  the  memory  of  their  great  benefactor  |  bands.  A  demagogue  is  a  sycophantic  parisite 
Theseus — they  consecrated  the  ashes  of  their  |  — a  servile  tool— a  slave  at  the  feet  of  power, 
deified  Socrates — they  recalled  their  just  Aris-  i  And,  though  the  object  of  his  idolatry  is  not  a 
tides  to  save,  from  foreign  foes  and  domestic  j  titled  king,  yet  he  fawns  at  the  feet  of  a  Bria- 
demagogues,  that  country  which  his  invincible  j  rsean  monarch,  an  excitable  multitude,  on 
virtues  so  impressively  illustrated — and  Cicero  !  whose  credulity,  vanity  and  passions,  he  plays 
was  restored  to  his  country  and  its  confidence,  j  with  all  the  dexterity  of  an  artful  courtier, 
and  once  more,  saluted  as  the  PATER  PATRICE  j  A  member  of  the  American  Congress  should 
who  had  adorned  his  age  by  his  eloquence  and  I  be  an  American  statesman — not,  like  Bnrkt 
34 


266 


INTRODUCTORY  LECTURE,  DELIVERED 


or  Cato,  too  tenacious  of  abstract  truth  to  do 
whatever  may  be  practically  best;  but — en 
lightened  by  proper  knowledge,  and  animated 
by  a  true  American  heart,  throbbing  for  his 
whole  country — always  doing  that  which  he 
believes  to  be  best  for  that  country  in  all  time. 
Such  a  public  servant  is  a  public  blessing  and 
will  always  be  honored,  even  in  exile.  The 
opposite  character  will  be  a  curse  to  any  peo 
ple,  and  his  posthumous  doom  will  be — in 
famy. 

The  Constitution  of  the  United  States  con 
templates  a  Congress  of  Statesmen:  the  con 
tagious  doctrine  of  instructions  will  make 
them  sycophants — slaves — demagogues.  We 
must  speedily  choose  between  the  blessing  and 
the  curse.  Blind  subservience  to  the  apparent 
will  or  feeling  of  the  numerical  majority  has 
already  impaired  the  efficacy  of  our  organic 
institutions,  and  has  even  brought  them  to  a 
state  of  fearful  transition.  It  tends,  more  and 
more,  to  the  Utopian  folly  of  unregulated  and 
uncontrolled  democracy — representative  in 
form,  but  simple  and  unmixed  in  practice.  It 
tends  to  exclude  from  the  national  councils, 
our  best  and  wisest  men;  and  to  fill  them  with 
a  lower  race,  tirifit  and  untrustworthy — too 
many  of  them  ignorant  and  noisy,  and  too 
many  selfish,  unscrupulous  and  profligate: 
and,  by  its  entire  process,  it  tends  to  degrade 
office,  to  shake  the  confidence  of  good  and 
wise  men  in  the  value  and  long  life  of  the 
Union,  and  to  bring  the  general  government 
itself  to  the  lowest  ebb. 

In  addition  to  the  foregoing  considerations, 
there  is  another  peculiarly  applicable  to  the 
Senate,  and  that  is,  that  it  was  created  and 
organized  for  the  sole  purpose  of  staying  the 
occasional  tides  of  popular  sentiment  until 
they  may  floAv  back  or  become  harmless. 
This  will  not  be  denied;  and  if  it  should  be, 
no  other  proofs  can  be  required  than  the  ex 
tracts  already  quoted.  How  absurd,  then, 
must  it  be  to  assume  that  a  Senator  shall  be 
bound  to  submit  to  a  thing  which  he  was  ap 
pointed  to  resist,  and,  if  needful,  overcome? 
And  what  form  of  instruction  to  him  could  be 
generally  more  authentic  than  that  implied  by 
the  conduct  of  the  more  immediate  represen 
tatives  of  the  people?  The  act  of  this  branch 
may,  PRIMA  FACIE,  be  presumed  to  be  the  off 
spring  of  the  popular  will.  Resolutions  by 
State  Legislatures  would  certainly  not  be  bet 
ter  evidence  of  it.  Then,  if  a  Senator  ought 
to  vote  as  the  Legislature  of  his  State  may 
tell  him  to  vote,  he  ought  to  vote  as  the 
House  of  Representatives,  or  that  portion 
of  it  from  his  own  State,  had  voted. — 
But  the  office  of  the  Senate  is  to  check 
the  other  branch,  and  to  prevent  its  acts  from 
becoming  laws,  whenever  the  Senate  deems 
them  inexpedient.  And  to  afford  an  as 
surance  that  Senators  would  do  this,  the  con 
stitution  makes  them  comparatively  independ 
ent  of  popular  sentiment,  by  extending  their 
terms  to  six  years,  and  providing  for  their  elec- 


j  tion  by  a  select  body  of  public  men,  instead  of 
[the  people  themselves.  The  danger  appre- 
I  bended  was  that  the  members  of  the  House  of 
i  Representatives  would  sometimes  be  so 
'much  under  the  influence  of  symathy  with 
I  excited  masses  of  their  constituents,  or  so 
|  much  afraid  of  their  resentment,  as  to  be  un- 
;  safe  legislators.  And  to  guard  against  iiris- 
j  chief  from  that  source,  a  Senate  was  instituted, 
'and  its  members  were  required  to  be  of  a  grave 
land  ripe  age,  and  were  placed  by  the  consti- 
|  tutiou  so  remote  from  the  contagion  or  fear  of 
I  popular  ebulitions  as  to  be  presumed  free,  to 
:  a  conservative  extent,  from  their  influence. 
I  But  this  object  would  be  frustrated,  and  this 
I  theory  totally  subverted  by  inculcating  the 
:  suicidal  doctrine  that  Senators  are  bound,  at 
I  all  times  and  under  all  circumstances,  to  ex- 
: press,  by  their  votes,  the  will  of  the  Legisla- 
I  tures  or  of  a  majority  of  the  people  of  their 
j  respective  States.  And  the  Senator  Avho  will 
j  ever  do  it,  against  his  own  clear  convictions  of 
ibis  duty  to  his  country,  will  be  a  cowardly 
|  recreant  from  his  post,  and  a  traitor  to  the 
:  constitution.  Nor  could  he,  for  his  ease  or 
(comfort,  at  such  a  crisis,  resign  his  seat  with 
out  being  a  deserter  from  the  .very  service 
which  the  SenateVas  created  to  perform.  To 
I  execute  the  great  purpose  of  his  commission, 
I  and  exemplify  the  value  of  Senatorial  firmness 
i  and  experience,  it  is,  OH  such  an  occasion, 
I  PRE-EMINENTLY  his  duty  to  stand  at  his  post, 
and,  in  defiance  of  all  personal  considerations, 
'fulfil  his  trust  according  to  his  own  judgement. 
And  he,  who  cannot,  or  will  not  do  this,  in 
:  times  of  trial,  is  unworthy  of  a  seat  in  the  ven 
erable  body  of  CONSCRIPT  FATHERS,  and 
I  would  disgrace  the  Senatorial  mantle. 

But  well  settled  public  opinion  should  al- 
jways  so  far  influence  Senators  as  to  induce 
I  them  to  forbear  the  enactment  of  a  law  which 
;thc  majority  of  the  citizens  of  the  United 
!  States  would  deliberately  and  perscveringly 
'disapprove.  Public  policy  forbids  all  such 
I  impracticable  legislation.  LaAv — to  be  prac 
tical  and  useful — must  be  ultimately  accepta 
ble  to  the  people  for  whom  it  is  made. 

In  opposing  a  measure  also,  a  Senator,  as 
jweil  as  a,  Rpresentative,  should  respectfully 
!  regard  apparent  public  sentiment  as  an  impor- 
!  taut  fact  entitled  to  more  or  less  influence  as 
!  an  argument  although  to  none  as  a  command. 
jBut,  on  all  national  questions,  he  should  man- 
,  ifest  a  national  tone  of  thought,  of  principle, 
and  of  action.  Elevating  himself  above  the 
clouds  of  vulgar,  ignorance  and  the  lightnings 
of  local  factions,  he  should,  with  national 
eyes  and  comprehensive  patriotism,  survey  the 
great  and  magnificent  panorama  of  the  Union, 
and  feel  that  it  is  all  his  country,  and  his  con 
stituency.  And,  whatever  he  sees  to  be  the 
interest  of  the  whole,  he  should  resolutely  en 
deavor  to  accomplish,  even  at  the  expense  of 
threatened  political  martyrdom  at  home.  Ev- 
|0ry  such  Statesman  will,  underall  vicissitudes, 
!  enjoy  his  own  approbation  and  be  sustained  by 


ON  POPULAR  INSTRUCTIONS. 


267 


the  respect  of  all  good  and  wise  men.  And, 
if  his  heroic  patriotism  should  doom  him  to  a 
temporary  ostracism,  time  will  exalt  hia  name 
to  a  proud  eminence  above  the  infections  at 
mosphere  in  which  temporising  politicians, 
like  other  ephemera  of  a  day,  flutter  and  die. 
According  to  the  true  theory  and  animating 
spirit  of  our  American  Constitution,  such  is  a 
model  of  an  American  Senator.  Such  was 
DANIEL  WEBSTER — and  such  was  HENRY 
CLAY. 

But  our  modern  Senates  have  been  dignified 
with  only  a  few  of  that  noble  class.  Too 
many  of  them,  intoxicated  with  the  popular 
breath,  seem  to  have  been  uninspired  by  the 
genius  of  their  place.  The  progress  of  de 
generacy  has  been  so  rapid,  that,  already,  the 
Senate — almost  as  much  vulgarized  as  the 
other  Branch  of  Congress — has  lost  its  dis 
tinguished  caste,  and  has  nearly  abandoned 
the  high  position  of  guardian  umpirage  for 
which  it  was  created.  This  decline  to  the 
level  of  the  popular  body — as  ominous  as  it  is 
humiliating — is  the  effect  chiefly  of  an  abuse 
of  the  power  of  local  majorities  through  the 
direct  and  indirect  agency  of  popular  instruc 
tions.  And,  without  a  speedy  and  general 
retrogade  movement,  the  theory  of  the  Consti 
tution  will  be  changed,  and  undigested  De 
mocracy,  without  check,  will  rule  and  ruin. 

The  crisis  is  pregnant.  We  have  been  too 
much  ruled  by  politicians,  whose  idol  is  ephe 
meral  popularity  of  the  most  vulgar  stamp — 
foreign  influence,  in  both  religion  and  politics, 
is  paralyzing  all  pure  American  influence — 
and  foreign  policy  is  overrunning  American 
policy — premature  dogmas  of  free  trade,  invi 
ting  excessive  importations  of  foreign  products 
to  the  discouragement  of  domestic,  capital  and 
enterprise,  have  already  greatly  curtailed  our 
circulation,  crippled  our  resources,  and  involved 
our  country  in  a  heavy  debt — places  of  trust  at 
home  and  abroad,  are  filled  with  second  and 


third  rate  men  to  the  injury  of  our  people  and 
the  degradation  of  their  national  character — 
the  elective  franchise  is  prostituted — the  ballot 
box  is  defiled  and  corrupted — political  demoral 
ization  is  conseqiiently  progressive  in  an  alarm 
ing  degree.  Factions,  local  and  personal,  re 
ligious  and  political,  distract  our  councils  and 
disturb  our  peace — NULLIFICATION  and  SE 
CESSION  shake  their  Gordon  heads  in  the  face 
of  the  Union — and  names,  and  party  pride, 
and  fugitive  NON-ESSENTIALS,  if  not  soon  rem 
edied,  may  subjugate  the  band  of  true  Ameri 
can  patriots,  who,  even  yet,  have  the  power 
to  save  all  that  is  in  danger,  and  restore  all 
that  is  lost.  Let  them,  forgetting  the  past, 
and  looking  only  at  the  present  and  the  future, 
magnanimously  unite  on  a  platform  of  VITAL 
PRINCIPLES  in  which  all  true-hearted  Ameri 
cans  agree,  and  then,  and  not  until  then,  the 
work  of  rescue  and  reform  will  be  hopefully 
begun. 

The  call  for  such  an  union,  for  the  sake  of 
Liberty  and  Union,  is  loud  and  imperative. 
And,  if  it  shall — before  it  will  be  too  late — 
rally,  as  one  man,  the  friends  of  a  common 
cause,  that  cause  will  yet  gloriously  triumph 
and  long  prevail.  And  whenever  victory 
shall  crown  its  banners  and  emblazon  their 
folds  with  the  "CROSS  and  the  EAGLE" 
on  one  side  amd  the  "CONSTITUTION, 
UNION  and  LIBERTY,"  on  the  other, 
American  independence  will  be  redeemed,  and 
American  institutions  regenerated.  And  then 
the  Captain  of  the  triumphant  Christian  Host, 
that  shall  restore  religion  to  its  native  purity, 
simplicity  and  fraternal  love,  will  be  canon 
ized  as  a  better  missionary  and  greater  re 
former  than  Luther.  And  the  leader  of  the 
great  Army  of  the  Constitution,  which  shall 
save  and  restore  what  the  "Father  of  his 
Country"  fought  for  and  established,  will  de 
serve  the  title  and  receive  the  reward  of  a 
second  WASHINGTON. 


PRELECTION. 


A  large  body  of  the  elite  of  the  organized  melitia  of  Kentucky  having 
encamped  in  Franklin  county  near  the  capital,  for  the  purpose  of  disci 
pline  and  in  commemoration  of  our  National  Anniversary — Mr.  ROBERT 
SON,  nine  days  before  the  4th  of  July,  was  invited  to  address  the  as 
semblage  of  at  least  20,000  persons,  male  and  female,  old  and  yourg, 
citizens  and  soldiers — and  the  following  address  was  accordingly  de 
livered  : — 


CAMP  MADISON,  FRANKLIN  COUNTY,  KY.,  July  5,  1843. 
To  the  Hon.  George  Robertson  : 

SIR — By  a  resolution  adopted  at  a  meeting  of  the  officers  and 
troops  assembled  at  Camp  Madison,  the  undersigned  were  appointed  a 
committee  to  express  to  you  their  warm  thanks  for  the  able  and  eloquent 
address  delivered  to  them  by  you  on  our  National  Anniversary,  and  at 
the  same  time  respectfully  to  request  from  you  a  copy  for  publication. 
We  have  the  honor  to  be  respectfully,  your  obedient  servants, 

JOHN  MILLER.  Col. 
LUCIUS  DESHA,  Lt.  Col. 
C.  M.  CLAY,    Col.  Fayette  Legion. 
J.  T.  PRATT,  Adj't.  General. 
T.  L.  CALDWELL,  Surgeon  Gen. 


CAMP  MADISON,  5th  July,  1843. 

Gentlemen  : — In  answer  to  your  polite  and  flattering  communication 
requesting  for  publication  a  copy  of  the  address  delivered  yesterday,  at 
the  instance  and  in  behalf  of  yourselves  and  those  you  represent,  I 
cheerfully  consent  to  the  proposed  publication,  and  will,  in  a  day  or  two, 
furnish  you  the  desired  copy.  Yours  respectfully, 

G.  ROBERTSON. 


ADDRESS. 


Once  more,  ray  countrymen,  -we  are  permit- ! 
ted  gratefully  to  behold  the  anniversary  sun 
of  American  Independence  ;  once  more  we 
salute  the  star-spangled  banner,  and  rejoice 
that  the  cherished  emblem  of  our  union  and 
liberty,  spotless  arid  peerless  as  ever,  still 
waves  over  a  nation  now,  as  in  time  past,  sig 
nally  blessed  by  a  benignant  Providence  ; 
once  more,  on  earth,  the  old  and  the  young,  of 
all  classes,  forgetting  the  distinctions  of  name, 
of  fortune,  and  of  faith,  have  assembled,  un 
der  the  canopy  of  a  bright  sky,  to  embalm 
the  memory  of  "  J76,"  to  remember  the  tribu 
lations  and  triumphs  of  our  pilgrim  fathers 
and  mothers,  and  to  thank  God  that  we  are 
yet  a  free  and  united  people. 

At  the  call  of  those  trumpets  and  those 
drums — with  short  notice,  and  rather  as  a  "mi- 
nute-rnan" — the  organ  of  that  beautiful  and 
gallant  band  of  citizen  soldiers — I  appear  be- 1 
fore  you  on  the  forlorn  hope  of  suggesting,  for 
your  contemplations,  something  befitting  such  I 
an  assemblage,  on  siich  a  day.  And,  although  ! 
the  accustomed  and  more  comprehensive  to 
pics,  however  trite,  can  never  be  unacceptable 
to  those  who  delight  to  commemorate  "  the 
4th  of  July,"  yet  we  have  thought  that  a  sub 
ject  which"  whilst  it  may  be  less  directly  ap 
plicable,  is  more  local  and  novel,  might  be 
equally  appropriate  and  more  generally  inter 
esting.  The  birth,  progress,  and  condition  of 
our  own  Commonwealth,  as  an  offspring  of 
our  glorious  Revolution  and  a  member  of  our 
blessed  Union,  are  intimately  associated  with 
all  that  belongs  to  the  becoming  celebration  of 
this  day,  and  beautifully  illustrate  the  bene 
ficence  of  the  principles  of  human  right  and 
civil  government  which  have  consecrated  it  as 
a  national  jubilee.  Our  theme,  is  KEN 
TUCKY. 

"We  have  not  come  here  to  recite  the  annals 
of  our  State.  All  this  beauty,  and  chivalry, 
and  intelligence,  and  piety,  with  religious 
rites  and  martial  music  and  display,  announce 
a  purpose  far  more  comprehensive  and  im 
portant.  Feeling,  as  we  this  day  must,  that 
we  are  standing  on  a  narrow  isthmus  between 
the  great  oceans  of  the  eventful  past  and  o 
the  still  more  eventful  future,  we  instinctively 
glance  backward  on  the  one  and  forward  on 
the  other,  and  embrace,  in  the  transient  vi 
sion,  a  panorama  of  the  pregnant  present. 
Such  contemplations  are  peculiarly  appropri 
ate  and  affecting  ;  and,  when  intelligent,  | 
must  be  profitable.  Mixed  with  joy  and  sor 
row — hope  and  fear — gratitude  and  regret — 
complacency  and  humiliation — they  must 
help  to  exalt  our  minds  and  purify  our  hearts, 
awaken  us  to  a  proper  sense  of  our  duties  and 
responsibilities,  and,  by  inspiring  more  virtu 


ous  emotions  and  resolutions,  make  us  wiser 
as  individuals,  and  as  citizens  more  useful. 

A  bird's  eye  glance  at  Kentucky — physical, 
moral,  and  political — past,  present,  and  pro 
spective — may,  and  ought  to,  produce  all  those 
valuable  results,  as  fruits  of  this  day's  com 
memoration.  And  if,  in  any  degree,  such 
should  be  the  consequence,  our  assembling 
will  have  been  neither  barren  nor  vain  ;  and 
it  will  be  good  for  us  all  that  we  were  here. 

Time  builds  on  the  ruins  itself  has  made.  It 
destroys  to  renew  and  desolates  to  improve. 
A  wise  and  benevolent  Providence  has  thus 
marked  its  progress  in  the  moral,  as  well 
as  in  the  physical  world.  The  tide  which 
has  borne  past  generations  to  the  ocean  of 
eternity,  is  hastening  to  the  same  doom  the 
living  mass  now  gliding  downward  to  that- 
shoreless  and  unfathomed  reservoir.  But 
whilst  the  current,  in  its  onward  flow,  sweeps 
away  all  that  should  perish,  like  the  Nile,  it 
refreshes  every  desert  and  fructifies  every  wild 
through  which  it  rolls  ;  and,  fertilizing  one 
land  with  the  spoils  of  another,  it  deposits  in 
a  succeeding  age  the  best  seeds  matured  by 
the  toilW  ages  gone  before.  Asia  has  thus 
been  made  tributary  to  Africa  and  to  the 
younger  Europe,  ancient  to  modern  times, 
and  the  middle  ages  to  the  more  hallowed 
days  in  which  we  ourselves  live.  One  gene 
ration  dies  that  another  may  live  to  take  its 
place.  The  desolation  of  one  country  has 
been  the  renovation  of  another — the  downfall 
of  one  system  has  been  the  ultimate  establish 
ment  of  a  better — and  the  ruin  of  nations  has 
been  the  birth  or  regeneration  of  others  both 
wiser  and  happier.  The  stream  of  moral 
light,  with  a  western  destination  from  the  be 
ginning,  has,  in  all  its  meanderings,  increased 
its  volume,  until,  swollen  by  the  contributions 
and  enriched  by  the  gleamings  of  ages,  it  has 
poured  its  flood  on  the  cis-atlantic  world. 

America  is  a  living  monument  of  these  con 
soling  truths.  When,  within  man's  memory, 
it  was  blessed  with  the  first  footsteps  of  mo 
dern  civilization,  the  germs  of  inductive  phi 
losophy,  true  liberty,  and  pure  religion,  sifted 
from  the  chaff  and  rectified  by  the  experience 
of  ages,  were  imported  by  our  pilgrim  ancest 
ors  to  a  land  which  seems  to  have  been  pre 
pared  by  Providence  for  their  successful  de 
velopment  in  the  proper  season  for  assuring  to 
mankind  an  exalted  destiny,  at  last,  on  earth. 

In  less  than  250  years  from  the  first  settle 
ments  at  Jamestown  and  Plymouth,  the  tem 
perate  zone  of  North  America  already  exhibits 
many  signs  that  it  is  the  promised  land  of 
civil  liberty,  and  that  the  Anglo-Americans 
are  the  chosen  depositories  of  principles  and 


270 


ANNIVERSARY  ADDRESS 


institutions  destined  to  liberate  and  exalt  the 
human  race. 

But  our  own  Kentucky  is,  itself  alone,  a 
colossal  tower  of  God's  benevolence  and  time's 
beneficence  to  man.  Within  three  score  years 
and  ten — the  short  period  allotted  for  all  the 
works  and  enjoyments  of  a  human  being  h«re 
below — this  fair  Commonwealth,  now  so  bles 
sed  and  distinguished,  was  a  gloomy  wilder 
ness,  the  abode  of  wild  beasts,  and  the  hunt 
ing  ground  and  battle  field  of  the  still  more 
ferocious  red  men  of  the  west.  Its  fertile  soil 
was  xmfurrowed  by  the  plow,  its  gigantic  for 
est  untouched  by  the  axe  of  civilized  man. 
Within  all  its  limits  wild  nature's  solitude 
was  unblessed  by  the  voice  of  reason,  religion 
or  law — uncheered  by  one  spire  to  Heaven — 
by  one  hearth  of  domestic  charity,  or  by  the 
curling  smoke  of  a  solitary  cottage.  But,  in 
the  fullness  of  time,  the  red  man  was  to  be 
supplanted  by  the  white — the  scalping  knife 
by  the  sword  of  Justice — the  savage  war  cry 
by  the  church  bells  of  Christian  temples — the 
p  anther  and  the  buffaloe  by  domestic  herds — 
and  the  wilderness  was  soon  to  bloom  with  all 
the  beauty  arid  fragrance  of  ';  the  rose  of  Sha 
ron  and  lily  of  the  valley." 

In  1774,  the  tide  of  civilization,  moving 
westward  from  the  Atlantic,  approached  the 
Alleghanies — the  Anglo-Saxon  race,  destined 
to  conquer  and  enlighten  the  earth,  crossed  the 
mountain  barrier — and  Finley,  and  Boone,  and 
Harrod,  and  Logan,  and  Knox,  and  Whitley, 
and  Kenton,  hunters  of  Kentucky — came,  and 
conquered.  They  brought  with  them  the  rifle, 
the  axe,  the  plough,  and  THE  BIBLE.  And, 
thus  armed,  this  vanguard  of  their  race  led 
the  forlorn  hope  of  western  civilization  to  vic 
tory  and  to  fortune.  The  Indians  fell  by  their 
rifles,  the  forest  by  their  axes,  and  savage  idols 
tumbled  before  God's  holy  Book — until  the 
current  of  population,  rolling  on,  wave  by 
wave  in  rapid  succession,  soon  made  Ken 
tucky  a  rich  and  powerful  State — the  first 
born  of  the  Union  of  1788,  and  now,  even 
now,  unsurpassed  by  physical  blessings  and 
moral  power— already  the  mother  of  younger 
Commonweal tlis  in  the  great  Valley  of  the 
Mississippi,  and,  in  many  respects,  a  fit  ex 
emplar  to  the  nations  of  the  whole  earth. 

The  birth  and  legal  maturity  of  euch  a  Com 
monwealth  are  surely  worthy  of  public  com 
memoration.  As  Kentuckians,  we  should 
make  periodical  offerings  of  thanksgivings  to 
God  and  of  gratitude  to  our  pioneer  fathers 
and  mothers  for  our  enviable  allotments  in  this 
age  of  light  and  in  this  land  of  liberty,  plenty, 
and  hope.  Every  nation  leaves,  on  its  path 
way  behind,  some  lasting  memorial  which  it 
should  never  forget  or  neglect — some  green 
spots  in  the  waste  of  the  past,  around  which 
memory  lingers  with  ennobling  emotions, 
And  to  commemorate,  with  grateful  hearts, 
great  national  events  either  glorious  or  bene 
ficent,  is  a  double  offering  or.  the  altar  of  pa 
triotism  and  the-  altar  of  (rod.  Few  incidents 
in  the  history  of  nations  have  been  rnoro  use 
ful  or  can  be  more  memorable  than  that  of  the 
first  settlement  of  Kentucky  by  our  own  race 


few  have  been  more  eventful — and  not  one  ex 
hibits  more  of  romance  or  of  those  qualities 
and  deeds  deemed  chivalrous  and  noble  among 
men.  And  the  adoption  of  Kentucky's  or 
ganic  law  and  her  admission  into  the  federo- 
national  union  of  Anglo-American  States,  con 
stitute  an  appropriate  episode  to  the  thrilling 
epic  of  her  Herculean  infancy.  Our  own  in 
terests,  duty  to  the  generations  that  shall  suc 
ceed  us,  and  respect  for  the  memory  of  our 
illustrious  predecessors — call  Kentuckians, 
one  and  all,  to  the  consecration  of  an  occa 
sional  day  or  days  to  the  becoming  celebration 
of  those  two  most  interesting  events  in  our 
local  history.  And  let  these  Kentuckiads— 
like  the  saturnalia  of  the  Romans,  the  Pass 
over  of  the  Jews,  and  the  Olympiads  of  the 
Greeks — be  sacred  seasons,  wheii  all  of  every 
rank  and  denomination,  animated  by  the  same 
pervading  sentiments  and  communing  as  one 
family,  may  refresh  their  patriotism,  revive 
their  civic  virtues,  and  improve  their  social 
graces . 

This,  my  countrymen,  is  a  monumental 
land.  Modern,  as  it  is,  in  authentic  history, 
it  is  covered  with  monuments  ef  a  remote  an 
tiquity — memorials,  not  only  of  successive 
generations  of  long  extinct  vegetables  and  an 
imals  whose  transformed  relics  fill  and  fertil 
ize  the  earth  beneath  us,  but  also  of  a  race  or 
races  of  men  as  far  advanced  perhaps  in 
knowledge  and  the  arts  of  social  life  as  their 
contemporaries  of  Europe,  Asia,  or  Africa  ; 
but  of  whose  origin,  history,  or  doom,  no  tra 
dition  remains.  It  contains  monuments  also 
of  more  recent  races  less  civilized,  and  by 
whom  the  more  ancient  and  enlightened  in 
habitants  may  have  been  exterminated  or  ab 
sorbed,  as  Southern  Europe  once  was,  and 
perhaps  about  the  same  time,  by  wander 
ing  tribes  of  Northern  barbarians.  By  its 
central  position  as  the  heart  of  North  Amer 
ica — its  stupendous  cliffs  and  labyrinths — its 
genial  climate — its  unsurpassed  fertility — its 
physical  beauty  and  magnificence — its  insti 
tutions,  its  population,  and  its  deeds — God 
has  made  it  an  everlasting  monument  as  en 
during  as  its  own  mountains  and  far  more  in 
teresting  than  the  Towers  and  Pyramids  of 
the  old  world.  And  may  we,  of  this  genera 
tion,  leave  behind  us  memorials  worthy  of  our 
country  and  our  age. 

Sites  of  large  cities  of  the  Cyclopean  style  ; 
ruins  of  gigantic  fortifications,  temples,  and 
cemeteries — perfect  petrifactions  of  human  be 
ings  of  the  Caucasian  form,  with  the  accus 
tomed  habiliments  of  the  civilized  dead — all 
disinterred  after  a  sleep  of  many  centuries — 
prove,  beyond  dispute,  that  our  continent  was 
once  the  theatre  of  a  crowded  population  re 
sembling,  and  probably  equalling,  the  most 
civilized  of  their  coternporaries  of  the  trans 
atlantic  world.  When  and  whence  those 
buried  and  forgotten  nations  came  to  America 
we  have  no  clue  for  determining  with  historic 
certainty.  If,  as  may  b<>  probable,  any  of 
them  were  superior  to  the  Itzacans — who  emi 
grating  probably  from  the  Caspian  sea,  built 
Mexico  and  Cusco — they  may  have  been  Car- 


ON  THE  SETTLEMENT  OF  KENTUCKY. 


271 


thagenians,  Phoenicians,  Phocians,  or  Etrus'  the  hand  of  civilization  until  the  year  1767, 
cans— all  of  the  Pelasgian  race— or  probably  when  GEORGE  WASHINGTON,  afterwards 
Danes;  all  of  which  ^<™«  unvio-atprl  the ! 


the 


tions  navigated  the  'commander-in    chief   and    President   of 
the  Atlantic    Ocean,  and  the   last  of  whom  United  States,   visited  the  Eastern  portion  of 


had  planted  settlements  in  the  New  England 
States  at  least  twelve  centuries  ago.  Modern 
geology,  which  discloses  the  history  of  the 
earth  and  vegetation  and  irrational  animals 
for  thoussnds  of  years,  is  dumb  as  to  our  race, 
of  whom  there  is  no  fossil  fragment  in  any  of 
the  stratifications  of  the  globe.  Nor,  whilst 
it  proves,,  beyond  question,  that  this  whole 


it,  and  under  the  proclamation  of  '63,  made 
two  surveys,  chiefly  within  its  limits,  on 
Sandy,  in  the  name  of  John  Fry,  the  Colonel 
of  the  regiment,  of  which,  in  the  war  of  '513, 
he  himself  was  Lieut.  Colonel.  These  sur 
veys,  like  everything  else  attempted  by  Wash 
ington,  were  perfectly  made  and  reported,  so 
that  every  line  and  corner  have  been  easily 


continent  was  once  covered  by  an  ocean  of  identified.  They  were  the  first  surveys  ever 
water,  does  it  intimate  the  origin,  character,  I  made  within  the  limits  of  our  present  state — 
or  destiny  of  the  more  enlightened  people  who  j  and  thus  Washington  was  one  of  the  first 
lived  on  it  after  its  emergence  and  L 


long  before 
the  discovery  of  it  by  Cabot. 

Their  tale  is  untold.  Were  it  known,  it 
would  doubtless  be  interesting  and  eventful. 
Ages  ago,  Kentucky  may  have  been  the  busy 
theatre  of  incidents  and  catastrophes  in  the 
drama  of  civil  and  social  life,  of  which  a  He- 
siod,  a  Homer,  and  a  Virgil  might  have  sung 
with  immortal  melody  It  is  said  that,  when 
Alexander  saw  the  hillocks  supposed  to  con 
tain  the  bones  of  Achillis  and  Patroclus,  he 


hunters  of  Kentucky."  Finley  and  others, 
of  North  Carolina,  having  in  the  same  year  of 
1767,  explored  the  best  northern  portions  of 
the  territory,  and  returned  with  alluring  ac 
counts,  Daniel  Bone  of  the  same  state,  the 
Nimrod  of  the  day,  was  induced  to  come  and 
look  at  it  for  himself  in  1769.  He  was  so 
charmed  with  the  beauty  and  sublimity  of  its 
landscape,  the  melody  and  fragrance  of  its 
forests,  and  the  variety  and  abundance  cf  its 
wild  game,  as  to  linger  in  its  solitudes,  gen- 


sighed  because  he  too  had  not,  like  them,  a  |  erally  alone,  for  two  years.     In  1770,  in  es- 
Homcr  to  canonise  his  name.  caping  from  Indians  who  killed  one  of  his 

May  not  Kentucky,  centuries  back,  have 'brothers  by  his  side  on  Boone's  creek  in  the 
had  its  Achilles  and  Patroclus,  and  Hector,  j  present  county  of  Clarke,  he  lost  his  hunting 
and  Helen,  and  Troy — its  Marathon,  its 'knife,  which  was  found  in  1822,  and  is  now  in 
Athens,  its  Delghi,  and  its  Parnassus — its  the  historic  cabinet  at  Washington  city.  In 
Theseus,  its  Solon,  its  Socrates,  its  Eparni- !  1773-4,  several  surveys  were  made  near  "  the 
nondas,  its Themistocles,  its  Demosthenes — its  (falls,"  and  on  Elkhorn  and  the  Kentucky 
wars,  its  friendships,  its  loves,  and  its  human  river  under  the  proclamation  of  '63.  And,  in 
woes  ?  But  of  these  no  Homer  sang,  and  all  the  fall  of  the  year  1774,  James  Harrod  of 
is  now  desolation  and  oblivion.  Whilst  WTO  j  Monongehala,  with  about  60  others  who  were 
tread  on  the  ruins  of  generations  unknown, !  in  "the  battle  point,"  built  some  cabins 


all  that  history  tells  of  Kentucky's  past  may 
be  embraced  in  the  narrow  span  of  one  cen 
tury. 

Long  prior  to  the  immigration   of  our  an 
cestors,  Kentucky  had  been  depopulated,  and, 


where  Harrodsburgh  now  stands,  and  returned 
home  with  the  intention  of  removing  to  them, 
which  some  of  them  did  in  the  faU  of  1775. 
Boone  had  come  with  his  family  as  far  as 
Holstein,  was  at  Wataga  in  March  1775,  and 


the    theatre   of 
And,    from 


covered  with  majestic  fotests  and  luxuriant  having  there  assisted  in  negotiating   the  con- 
nc, — had  become  the  hunting  ground  of  va-  'tract  whereby  the  Cherokees,  who  claimed  all 

the  territory  south  of  the  Kentucky  river,  sold 
to  Colonel  Henderson  of  North  Carolina,  their 
title  thereto,  he  was  employed  by  the  pur 
chaser  to  open  the  first  Kentucky  road — (from 

dark  and  bloody  ground."     Though  embraced   Cumberland  gap  to  that  river,)   which  being 

limits  of 'soon  completed  by  blazing  trees;  and  calling 


cane 

rious   tribes   of  savages 

bloody  conflicts  between   them. 

those    circumstances,   it  derived   its   name — 

Kantuckee,    in    Indian  dialect   being,    "the 


constructively  within  the  chartered 

Virginia  under  James's  grant  of  1606,  yet   it  the  designated  route 


was  also  claimed  by  France — both  England 
and  France  claiming  a  great  portion  of  North 
America  by  alleged  prior  discovery,  which, 


trace,  he  commenced, 


about  the  middle  of  April,  1775,  the  erection 
of  a  log  fortification  on  the  southern  bank  of 
the  river,  at  a  place  since  called  Boonsbo- 


according  to  the  conventional  law  of  Chris- !  rough,  and  which  was  finished  in  June  of  the 


tendorn,  gave  to  a  Christian  nation  dominion 
over  any  unchristian  country  which  it  first  dis 
covered.  These  conflicting  claims  of  Eng 
land  and  France  not  being  adjusted  until  the 
treaty  of  1763,  the  uncertainty  of  title,  the  re 
moteness  of  the  territory,  and  the  perils  and 
privations  incident  to  a  colonization  of  it  re 
tarded  its  exploration  and  settlement  until 
after  that  peace  had  been  concluded.  Some 
wandering  Frenchmen,  as  well  as  Virginians, 
had  occasionally  had  earlier  glimpses  of  it, 
and  made  glowing  reports  of  its  fertility  and 
beauty.  But  it  remained  unappropriated  by 


same  year.  Thus  it  is  almost  certain  that, 
whilst  the  first  revolutionary  guns  were  thun 
dering  on  the  19th  of  April  at  Lexington, 
Massachusetts,  in  the  cause  of  National  In 
dependence,  the  pioneer  axe  was  resounding 
among  jthe  cliffs  of  Kentucky  in  the  work  of 
rearing  the  first  modern  fortress  for  founding 
and  guarding  civilization  in  this  Hesperian 
wilderness.  The  fortress  being  completed, 
Boone  removed  to  it  with  his  wife  and  daught 
ers  early  in  September,  1775. — These  were  the 
first  civilized  females  who  ventured  to  settle 
4n  Kentucky.  Without  the  co-operation  of  the 


272 


ANNIVERSARY  ADDRESS 


^entler  sex,  the  settlement  would  never  have 

been  made.     Woman  "was  the  guardian  angel 

of  the  wild  and  perilous  forest.     And  never, 

on  earth,    was  the    poet's  conception   of  her 

value  more  perfectly  exemplified — for  it  was 

here  truly  seen  and  felt  that — 

"  The  world  was  sad,  the  garden  was  a  wild, 

"And  man  the  Hermit  sighed,  till  woman 

smiled." 

The  anniversary  of  the  first  advent  to  Ken 
tucky  of  Christian  woman,  by  whom  our 
State  has  since  been  so  signally  adorned  and 
blessed,  should  itself  he  commemorated  with 
grateful  hearts.  She  was  the  tutelar  genius 
of  our  settlements — she  has  been  the  foster 
mother  of  the  domestic  virtues  which  have 
hallowed  our  hearths  and  graced  our  society 
— and  she  it  was  that  fired  the  heart  of  Ken 
tucky  patriotism  and  nerved  the  arm  of  Ken 
tucky  chivalry. 

In  1776  many  improvements  were  made 
preparatory  to  ultimate  residence,  and  of  such 
a  character  as  merely  to  identify  the  selected 
spots  as  those  intended  for  occupancy  and 
cultivation. — Until  the  year  1777  all  this  cis- 
montanian  territory  of  Virginia  was  embraced 
in  the  county  of  Fincastle,  and  was  virtually 
in  a  state  of  nature,  without  any  local  juris 
prudence  or  organized  administration  of  jus 
tice.  But  the  county  of  Kentucky,  cotermin 
ous  with  our  state,  having  been  established 
about  the  close  of  the  year  1777 ,  the  new  county 
was  organized  and  a  court  of  Quarter  Sessions 
was  opened  in  March,  at  Harrodsburgh.  And 
of  that  Kentucky  court  of  justice,  Levi  Todd 
was  the  first  clerk. 

As  the  Revolutionary  war  was  raging,  and 
no  law  had  been  passed  for  the  appropriation 
of  land  on  this  side  of  the  mountains,  the  set 
tlement  of  this  country  did  not  increase  very 
rapidly  before  the  year  1779,  when  "the  land 
law"  was  enacted.  Having  always  asserted 
full  dominion  over  all  the  territory  within  her 
chartered  limits,  conceding  to  the  savage  oc 
cupants  the  usufruct  merely,  Virginia  declared 
illegal  and  void  the  purchase  made  by  Col. 
Henderson,  and  another  also  by  Col.  Donald 
son  from  the  Six  Nations,  of  the  territory 
north  of  the  Kentucky  river,  all  of  which  was 
claimed  by  those  tribes.  But,  considering 
those  purchases  valid  for  the  purpose  of  di 
vesting  the  aboriginal  title,  our  parent  state 
claimed  the  absolute  right  to  the  entire  terri 
tory  as  a  trust  resulting  to  her  from  the  ille 
gal  contracts,  which  were  deemed  void  so  far 
only  as  they  purported  to  vest  beneficial  in 
terests  in  the  individual  purchasers  who  had 
made  contracts  with  Indians  in  violation  of  a 
statute  prohibiting  all  such  purchases.  Thus 
claiming  the  use  of  the  land,  as  well  as  juris 
diction  over  it,  the  Legislature,  in  1779,  enact 
ed  a  statute,  commonly  called  "  the  land  law," 
authorizing,  in  prescribed  modes,  individual 
appropriations  of  land  in  Kentucky,  This 
beneficent  enactment  brought  to  the  country, 
during  the  fall  and  winter  of  that  year,  an 
unexampled  tide  of  imigrants,  who,  exchan 
ging  all  the  comforts  of  their  natire  society 


and  homes  for  settlements  for  themselves  and 
children  here,  came  like  pilgrims  to  a  wilder 
ness  to  be  made  secure  by  their  arms  and  habi 
table  by  the  toil  of  their  lives.  Through  pri 
vations  incredible  and  perils  thick,  thousands 
of  men,  women,  and  children,  came  in  succes 
sive  caravans  forming  continuous  streams  of 
human  beings,  horses,  cattle,  and  other  domes 
tic  animals,  all  moving  onward  along  a  lonely 
and  houseless  path  to  a  wild  and  cheerless 
land.  Cast  your  eyes  back  on  that  long  pro 
cession  of  missionaries  in  the  cause  of  civili 
zation.  Behold  the  men  on  foot,  with  their 
trusty  guns  on  their  shoulder,  driving  stock 
and  leading  packhorses — and  the  women, 
some  walkingwith  pails  on  their  heads,  others 
riding  with  children  in  their  laps  and  other 
children  swung  in  baskets  on  horses  fastened 
to  the  tails  of  others  going  before.  See  them 
encamped  at  night  expecting  to  be  massacred 
by  Indians — behold  them  in  the  month  of 
December,  in  that  ever  memorable  season  of  un 
precedented  cold  called  "the  hard  winter," 
travelling  two  or  three  miles  a  day,  frequently 
in  danger  of  being  frozen  or  killed  by  the 
falling  of  horses  on  the  icy  and  almost  im 
passible  trace,  and  subsisting  only  on  stinted 
allowances  of  stale  bread  and  meat;  but  now, 
lastly,  look  at  them  at  the  destined  fort,  per 
haps  on  the  eve  of  meriy  Christmas — when  met 
by  the  hearty  welcome  of  friends  who  had  come 
before  and  cheered  with  fresh  buffalo  meat 
and  parched  corn — they  rejoice  at  their  deliv 
erance,  and  resolve  to  be  contented  with  their 
lots. 

This  is  no  vision  of  the  imagination.  It  is 
but  an  imperfect  description  of  the  pilgrimage 
of  my  own  father  and  mother,  and  of  many 
others,  who  settled  in  Kentucky  in  December, 
1779.  "When,  resting  from  their  journey,  they 
looked  at  the  cheerless  home  of  their  choice, 
and  remembered,  with  sighs,  the  kindred  and 
comforts  left  behind  in  the  sunny  land  of  their 
youth — they  were  yet  consoled  by  trust  in  the 
martyr's  God,  and  animated  by  the  rainbow  of 
hope  which  gilded  the  dark  firmament  lower 
ing  over  the  unchincked  cabins  which  scarcely 
sheltered  their  heads.  Blest  be  the  memory  of 
the  patriarchal  band;  blest  forever  be  the 
land  ennobled  by  their  virtues  and  consecrated 
by  their  blood;  and  blest  be  their  children  and 
their  children's  children,  both  in  this  life  and 
in  that  to  come. 

The  land  law  provided — that  all  persons 
who  had  settled  themselves  or  others  in  the 
country  in  good  faith  antecedently  to  the  1st 
of  January,  1778,  should  be  entitled  to  400 
acres  including  each  settlement,  at  the  price  of 
$2.50  for  each  hundred  acres;  that  all  who,  in 
like  manner,  had  settled  in  villages  should  be 
entitled,  collectively,  to  640  acresfortheirtown, 
and  individually  to  400  acres  each,  at  the 
same  price  of  $2.50  for  each  hundred  acres; 
that  such  as  had  settled  since  the  1st  of  Janu 
ary,  1778,  should  be  entitled  to  a  pre-emption 
of  400  acres,  including  each  settlement  on 
paying  for  each  hundred  acres  £4'J  in  paper 
money,  then  equal  to  about  $40;  that  such  as 
had,  before  the  1st  of  January,  1778,  chosen 


ON  THB  SETTLEMEMT  OF  KENTUCKY. 


373 


nny  vacant  land  marked  it  or  built  a  house  or 
made  any  ether  improvement  on  it,  should  be 
entitled,  for  the  same  price  £40  per  hundred, 
to  a  pre-emption  of  1,000  acres  for  each  im 
provement  ;  that,  to  every  settlement  right  a 
pre-emptive  right  to  an  additional  1,000  acres, 
at  the  government  price  of  £40  in  paper  money 
for  each  hundred  acres,  should  be  attached  so 
as  to  adjoin  the  settlement  survey  ;  and  that, 
independently  of  any  pre-emption  claim,  any 
person  might  procure  a  treasury  warrant  for 
any  quantity  at  the  said  State  price,  to  be  lo 
cated  by  his  own  direction. 

Settlement  and  village  claims  were  to  be  ad 
justed  by  commissioners  appointed  by  Virginia, 
whose  first  session  was  on  the  13th  of  October, 
1779,  at  Logan's  Station,  near  the  present  vil 
lage  of  Stanford,  and  whose  first  certificate  of 
title,  dated  the  next  day,  was  granted  to  Isaac 
Shelby,  (the  first  Governor  of  Kentucky)  for  a 
settlement  and  pre-emption  of  1,400  acres,  "for 
raising  corn  in  1776"  near  the  Knob  Lick,  about 
five  miles  south  of  Danville,  where  he  after 
wards  resided  and  died. 

The  settlement  of  Kentucky  was  not  the  only 
aim  of  the  laud  law  of  1779.  Unfortunately 
for  the  repose  of  the  first  settlers,  Revenue  was 
Virginia's  principal  object.  She  issued  war 
rants  for  more  land  than  she  had,  and  the  best 
lands  were  covered  by  successive  appropria 
tions.  This  was  the  fault  of  the  law,  which 
not  only  permitted  each  claimant  to  make  his 
own  entry,  but  required  each  location  to  bo 
made  with  so  much  precision  as  to  enable  sub 
sequent  locators  to  appropriate,  without  colli 
sion,  the  adjacent  residuum.  This  last  provi 
sion  was  judicially  construed  as  requiring  no 
toriety,  actual  or  potential,  in  the  locative  calls, 
an  identity  between  the  entry,  survey,  and  pa 
tent.  Unluckily,  the  courts  decided  also  that 
an  older  grantee  might  be  compelled,  by  a  court 
of  equity,  to  relinquish  his  legal  title  to  a  ju 
nior  claimant  under  the  better  entry  ;  and  that 
a  subsequent  locator,  whose  entry  was  con 
structively  certain  and  good,  should  be  prefer 
red  to  ;i  prior  locator  whose  entry  did  not  pos 
sess,  at  its  date,  the  prescribed  notoriety  or 
requisite  identity,  even  though  the  subsequent 
appropriate!'  knew,  or  might  by  reasonable  en 
quiry,  have  known,  when  he  made  his  entry, 
that  he  was  encroaching  on  a  prior  appropri 
ation. 

These  anomalous  rules  and  doctrines  ope 
rated  unjustly  to  individuals  ;uid  injuriously 
to  the  prosperity  and  peace  of  Kentucky. 
They  produced  vexatious  and  protracted  liti 
gation  involving,  for  many  years,  most  of  the 
original  titles — and  that  litigation  generally  re 
sulted  to  the  loss,  and  often  the  ruin  oi'  the 
earlier  appropriators,  who  liad  neither  craft  i 
the  foresight  necessary  for  eluding  the  legal  net 
worm  by  the  avaricious  or  unskilful  legislators, 
cunning  bovvers,  and  metaphysical  courts. 
Many,  perhaps  moM,  of  the  advanced  guard 
who  rescued  the  country,  were  aupplauttd  by 
voracious  speculators. 

Boone  was  one  of  the  most  conspicuous  ol 

these  victims.     Of  the  many  tracts  of  rich  land 

for  which  he  had  obtained  titles,  it  is  not  cer- 

35 


.ainly  known  that  he  was  permitted  tohold  one 
foot.  Like  Moses  he  led  the  pilgrim  army — 
and,  like  him,  he  saw  but  never  enjoyed  the 
promised  land. 

The  Indian  tribes,  who  had  claimed  the 
;erritory  as  their  own,  denying  the  validity  of 
;he  contracts  purporting  to  cede  their  titles  to 
Henderson  and  Donaldson,  and  many  other 
tribes — of  which  the  Shawanees  were  the 
most  ferocious — claiming  it  as  common  hunt- 
ng  ground— these  combined  savages  deter 
mined  to  prevent  the  occupation  of  it  by  "  the 
Long  knife,"  as  they  characterized  the'  white 
men  ;  and  bv  persevering  massacres  of  the 
early  immigrants  on  their  way  to  the  country 
and  after  others  had  reached  it,  they  endea 
vored  to  nip  the  settlement  in  its  bud.  This 
savage  crusade  against  civilization  was  prose- 
uted  in  the  settlements  of  Kentucky  until 
after  Clark's  campaign  in  1782,  and  on  the 
borders  of  the  Ohio,  until  Wayne's  treaty  at 
Greenville,  in  1795.  Prior  to  the  treaty  of  In 
dependence  in  1783,  neither  the  confederation 
nor  any  of  the  States  contributed  any  efficient 
aid  to  the  Spartan  band  of  issolated  pioneers 
who  encountered  alone  all  the  horrors  of  ex 
terminating  war  with  numerous  tribes  of  sa 
vages.  In  that  bloody  struggle  even  the 
ihildren  were  soldiers  and  the  women  all  he 
roines.  The  husband,  with  his  rifle,  had  to 
guard  his  wife  whilst  she  milked  their  cow  ; 
and  the  lonely  mother  with  her  children  often 
defended  their  cabin  against  unsparing  as 
saults  at  night.  Day  after  day,  and  night  after 
night,  families  were  surprised  and  slaughtered 
- — companies  of  immigrants  massacred — sta 
tions  attacked — and  bloody  battles  fought — 
and  captives  taken  and  either  rescued,  or 
butchered,  or  burned  at  the  stake. 

The  horrid  massacres  at  Martin's  and  Kon- 
cheloe's  Stations — 'the  defeated  camps, 'where 
a  large  company  of  men,  women,  and  children, 
were  nearly  all  slaughtered  in  their  tents  on  the 
wilderness  trace,  in  1781,  and  where,  in  the 
darkness  and  chilling  rain  to  which  a  fugi 
tive  mother  had  escaped  undressed,  a  child 
was  born  whom  many  of  us  knew  in  man 
hood's  prime  : — the  assault  on  the  cabin  of 
.Mrs.  Woods,  near  the  Crab  Orchard,  in  1782 
— the  bloody  rencounter  between  an  Indian 
who  had  forced  an  entrance,  and  her  negro 
man — the  attempts  of  other  Indians  to  cut 
down  her  door — their  repulse  by  her  pointing- 
through  a  crack  a  gun  barrel  used  as  a  poker, 
and  her  finally  cutting  off  the  Indian's  head 
with  a  broadax,  whilst  he  and  her  slave  were 
lying  together  side  by  side  fighting  on  the 
floor  : — the  capture  of  Miss  Galloway  and 
Miss  Boone,  at  Boonsborough,  1776 — the  pur 
suit  by  their  parents,  one  of  whom  (Boone) 
subscribed  an  oath  that  he  would  rescue  the 
children,  if  alive,  or  die  in  the  effort — the  in 
s'.inctive  sagacity  of  the  captives  in  leaving 
shreds  of  their  handkerchiefs  and  dresses  as 
signals  of  their  course  and  of  the  encouraging 
fact  that  they  still  lived — the  anxiety  of 
the  pursuing*  fathers  when,  surveying  the 
camp  of  the  sleeping  captors,  they  beheld 
their  daughters  lying  arm  in  arm — the  solid- 


274 


ANNIVERSARY  ADDRESS 


tude  of  those  children  when,  shortly  afterwards 
they  saw  their  fathers  themselves  hopeless 
prisoners,  tied  to  trees,  facing  tomahawks  up 
lifted  to  slay  them — and  the  mutual  joy  of  pa 
rents  and  children  when,  at  that  awful  mo 
ment,  a  fire  from  friends  who  had  followed  in 
the  pursuit  dispersed  the  savages  and  rescued 
the  captives  who  were  soon  in  each  other's 
arms  weeping  with  pious  joy  for  their  provi 
dential  deliverance  : — The  capture  of  Simon 
Kenton,  and  his  rescue  from  the  fire  of  the 
sake  by  the  renegado,  Simon  Girty,  who,  hat 
ing  his  race,  had  become  a  leader  of  Indians, 
and  though  more  cruel  than  any  of  them,  yet, 
in  this  instance,  illustrated  the  triumphant 
strength  of  schoolboy  associations  ;  for  he  and 
Kenton  had  played  together  when  they  were 
boys,  and,  recognizing  the  familiar  face  just 
as  the  incendiary  was  igniting  the  funeral  pile 
of  faggots,  he  instinctively  cried  stop  ! — and 
the  bloody  hand  Avas  stayed  : — The  attack  by 
more  than  one  hundred  Indians,  on  Capt. 
Hubbal's  boat  as  it  descended  the  Ohio  with 
his  family — his  chivalrous  defence  until  the 
blood  gushed  over  the  tops  of  his  boots,  and 
his  successful  resistance  even  then,  and  final 
victory  by  repelling  the  assailants  with  billets 
of  wood  until,  coming  in  sight  bf  Lime 
stone,  they  ceased  their  efforts  to  board  with 
their  canoes  and  paddled  off,  leaving  the  1,0- 
ble  immigrant  and  his  blood-stained  boat  to 
float  alone,  a  monument  of  valor  never  sur 
passed  : — The  many  captures  of  women  and 
children;  the  burning  of  infants  or  the  crushing 
of  their  heads  against  trees  in  the  presence  of 
their  mothers — the  detention  in  savage  bond 
age  of  men,  women,  and  children  for  years — 
and  the  burning  of  many  at  the  stake,  orna 
mented  with  the  scalps  of  their  friends  : — 
These  were  some  of  the  scenes  of  peril  and 
blood'which  characterized  the  first  settlement 
of  Kentucky  by  our  race- 
Battles  too  were  fought  as  gloriously  as 
those  of  Thermopylae  and  the  Grampian  Hills. 
Who  does  not  remember,  with  honest  pride, 
the  traditions  of  the  heroic  defence  of  Boons- 
borough,  and  Harrodsburgh,  and  of  Logan's 
and  Bryan's  Station  ?  AncRivhere  is  the  heait 
that,  does  not  glow  with  admiration  at  the  re 
cital  of  the  romantic  incidents  which  signal 
ized  these  and  many  others  as  memorable  oc 
casions  in  our  short  but  eventful  history  ? 
One  only  may  illustrate  the  spirit  of  all  of 
them.  Nearly  400  Indians,  lying  concealed 
around  Logan's  Station,  surprised  aad  shot 
down  one  of  its  few  defenders  who,  at  the 
dawn  of  day,  had  passed  the  puncheon  stock 
ade  in  qxiest  of  the  caws — and  then,  with  sa 
vage  yells,  they  attacked  the  fort  ;  while 
pouring  their  rifle  balls  like'  hail  upon  the 
humble  fortress,  the  wounded  man,  between 
two  fires,  raised  .himself  on  his  hands  and 
knees,  but,  unable  to  stand,  lie  could  not  es 
cape.  Col.  Benjamin  Logau,  observing  this 
imploring  scene,  exclaimed  "  who  will  go  and 
help  our  wounded  friend?"  Several  made 
the  attempt,  but  were  driven  back  by  the  ene 
my's  balls  ;  at  last  Logan  himself  nobly  ran 
to  his  relief  and,  lifting  him  on  his  shoulders, 


carried  him  safely  in  untouched  by  one  of  the 
hundreds  of  bullets  aimed  at  their  heads. 

'•  Estill's  defeat,"  near  Mountsterling,  on 
the  20th  of  March,  1782,  was  as  glorious  as 
disastrous.  More  skill  and  courage  were  ne 
ver  displayed  on  a  battle  field  than  Capt.  Es- 
till  and  his  associates  that  day  exhibited  and 
sealed  with  the  blood  of  all  and  the  lives  of 
the  leader  and  many  of  his  men.  At  the  time 
of  that  ever  memorable  battle,  "  Estill's  Sta 
tion"  was  occupied  and  .to  be  defended  only 
by  women  and  children,  and  by  my  own  father, 
who  was  then  lying  there  disabled  by  several 
wounds  received  from  Indians  a  few  days  be 
fore. 

And  in  "the  Blue  Lick  defeat,"  August  the 
20th,  1782,  the  cormorant  of  death  fed  greedily 
on  the  flower  of  the  first  settlement.  On  that 
darkest  of  their  gloomy  days  eveiy  settler  lost 
a  friend,  and  nearly  c/ery  family  a  prop.  And, 
on  that  bloody  field,  the  noble  Cols.  Todd 
and  Trigg,  the  chivalrous  Capt.  Harlan,  and 
the  gallant  son  of  Boone,  lay  undistinguished 
among  the  promiscuous  slain,  all  soon  man 
gled  by  devouring  wolves  and  rultures  so  as 
not  to  be  recognized  by  their  friends,  who  three 
days  after  the  battle,  buried  the  fragments.  A 
few  of  their  crumbling  bones,  since  collected 
by  their  countrymen,  now  lie  exposed  t»  the 
elements,  in  a  confused  pile,  on  the  summit  of 
the  bleak  and  rocky  plain  where  the  heroes 
fell.  We  cannot  now  imagine  the  grief  and 
despondence  with  which  the  mournful  intel 
ligence  of  that  day's  catastrophe  covered  the 
land.  But  the  survivors,  though  wofully  be 
reaved,  were  not,  to  be  discouraged  or  dismay 
ed.  They  were  resolved  never  to  look  back  or 
faultcr  in  their  first  and  last  resolve  to  con 
quer  the  wilderness  or  die  in  the  attempt. 
Israel's  God  stood  by  and  sustained  the  noble 
but  forlorn  band — for  their  cause  was  his.  On 
the  long  roll  of  tha't  day's  reported  slain  were 
the  names  of  a  few  Avhohad,  in  fact,  been  cap 
tured  and,  after  surviving-  the  ordeal  of  the 
gauntlet,  had  been  permitted  to  live  as  cap 
tives.  Among  these  was  an  excellent  husband 
and  father,  who  with  eleven  other  captives, 
had  been  taken  by  a  tribe  painted  black  as 
the  signal  of  torture  and  death  to  all.  The 
night  after  the  battle,  these  twelve  prisoners 
wci«  stripped  and  placed  in  a  line  on  a  log — 
he  to  whom  we  have  specially  alluded  being 
at  one  extremity  of  the  devoted  row.  The 
cruel  captors,  then  beginning  at  the  other 
end,  slaughtered  eleven/.one  by  one;  but  when 
they  came  to  the  only  survivor,  though  they 
raised  him  up  also  and  drew  their  bloody 
knives  to  strike  under  each  uplifted  arm,  they 
paused,  and  after  a  long  pow- wow,  spared  his 
life — why,  he  never  knew.  For  about  a  year 
none  of  his  friends,  excepting  his  faithful 
wife,  doubted  his  death.  She,  hoping  against 
reason,  still  insisted  that  he  lived  and 
would  yet  return  to  her.  Wooed  by  another, 
she,  from  time  to  time,  postponed  the  nuptials, 
declaring  that  she  could  not  divest  herself  of 
the  belief  that  her  husband  still  lived.  Her 
expotsulating  friends  finally  succeeding  in 
their  efforts  to  stifle  her  affectionate  instinct, 


ON  THE  SETTLEMENT  OF  KENTUCKY 


275 


she  reluctantly  yielded,  and  the  nuptial  day 
was  fixed.  But,  just  before  it  dawned,  the 
crack  of  a  rifle  was  heard  near  her  lonely 
cabin — at  the  familiar  sound,  she  leaped  out, 
like  a  liberated  fawn,  ejaculating  as  she 
sprang — "  that's  John's  gun  !"  It  was  John's 
gun  sure  enough  ;  and,  in  an  instant,  she  was 
once  more,  in  her  lost  husband's  arms.  But, 
nine  years  afterwards,  that  same  husband  fell 
St.  Glair's  defeat" — and  the  same  disap 


pointed,  but  persevering,   lover  renewed  his   adopted  one  before.  1788.     Her  detached 

A",  i  ,     1  *       j          ,1  _       •     l  1  _     1_  * *  .£»  j.  •  j  1  1__  _i»j_l  AT          A  1 


suit — and  at  last  the  widow  became  his  wife. 
The  scene  of  those  romantic  incidents  was 
within  gunshot  of  my  natal  homestead  ;  and 
with  that  noble  wife  and  matron,  I  was  my 
self  well  acquainted. 

Almost  every  spot  of  earth  within  the  lim 
its  of  our  State  has  been  consecrated  by  some 
romantic  adventure  or  personal  tragedy  ;  and 
were  I  to  speak  of  these  remarkable  incidents 
qf  our  early  history  until  this  day's  setting 
sun,  I  could  scarcely  have  begun  the  moving 
tale  of  Kentucky's  first  settlement  by  those 
whose  blood  still  flows  through  our  own  heaits. 
The  few  facts  we  have  briefly  recited  are  but 


the  House  of  Representatives,  received  the 
first  Executive  communication,  read  to  them 
in  joint  meeting  by  the  Governor  in  person,  in 
imitation  of  the  practice  of  Washington,  as 
President  of  the  United  States. 

It  was  perhaps  lucky  that  Kentucky  was 
kept  in  a  state  of  pupilage  and  dependence 
until  after  the  adoption  of  the  Federal  Con 
stitution.  Her  own  constitution  probably  was 
much  better  than  it  would  have  been  had  she 

posi 
tion — the  non-surrender  of  the  Northwestern 
posts,  as  stipuluted  by  the  treaty  of  1783,  in 
consequence  of  which  the  Indians  were  insti 
gated  to  persevering  hostilities — the  occlu 
sion  by  Spain  of  the  Mississippi  river  below 
the  31st  degree  of  noth  latitude — and  a  general, 
but  unjust  suspicion,  that  the  federal  govern 
ment  was  inattentive,  perhaps  indifferent  to 
Westein  interests — had  generated  a  spirit  of 
distrust  and  disaffection  which  might  possibly 
have  been  exasperated  to  the  extremity  of  final 
alienation  had  Kentucky,  as  an  independent 


state,  possessed  the  power  to  act  as  she  might 
have  willed,  before  she  was  covered  with  the 

samples  of  countless  events  equally  interesting  j  panoply  of  the  National  Union  of  1788.  But 
and  far  above  the  power  of  adequate  descrip-  |  rescued,  either  by  Virginia  or  her  own  good 
tion  by  the  pen  or  tongue  of  man.  j  sense,  from  the  vortex  of  self-independence  or 

But  peril,  privation  and  death,  could  neither  (foreign  alliance,  she  now  stands  a  Doric  col- 
extirpate  the  settlement  nor  prevent  its  pro-Jumn  in  the  American  temple  of  Union.  Al- 
gressive  increase.  And,  in  1783,  two  auspi-  j  though,  in  fact,  an  integral  member  of  the 
cious  events  occurred — the  treaty  of  peace  with  Union  not  quite  as  soon  as  Vermont, yet,  as  the 
England,  and  the  subdivision  of  Kentucky  act  of  Congress  prospectively  admitted  her, 


county  into  the  counties  of  Lincoln,  Fayette, 
and  Jefferson,  and  the  organization  of  a  Dis 
trict  courts  with  criminal  as  well  a  civil  juris 
diction.  Of  that  first  local  court  of  general 
jurisdiction,  Juhn  Floyd  and  Samuel  McDow 
ell  were  the  first  Judges,  John  May  the  first 
Clerk,  and  Walker  Daniel  the  first  prosecut 
ing  attorney.  Its  first  session  was  at  Harrods- 
burgh,  March  3rd,  17£3  ;  but  it  was  perma 
nently  fixed  at  Danville  by  a  contract  with  the 
Clerk  and  Attorney  General,  the  proprietors 
of  the  land,  who  agreed  to  erect,  of  logs,  the 
public  buildings. 

As  early  as  1784,  the  population  had  become 
so  confident  of  its  capacity  to  govern  and  de 
fend  itself,  as  to  desire  a  separation  from  Vir 
ginia  ;  and  in  that  year,  a  Convention  was 
held  at  Danville  preparatory  to  the  establish 
ment  of  an  independent  government.  But  a 
disagreement  with  the  parent  State  as  to  the 
terms  of  separation,  frustrated  the  object  of 
that  and  other  successive  conventions,  and 
Virginia  having,  in  1789,  assented  on  pre 
scribed  terms  ratified  by  a  Convention  at  Dan 
ville  in  1790,  Congress  passed  an  act,  Febru 
ary  the  4th,  1791,  admitting  Kentucky  into 
Union  prospectively,  on  the  first  of  "June, 
1792.  And,  on  the  ISHh  of  April,  1792— the 
anniversary  of  the  battle  of  Lexington — the 
first  Constitution  of  Kentucky  was  adopted. 
Isaac  Shelby,  the  first  Governor,  arrived  in 
Lexington  (the  temporary  seat  of  government) 
June  the  4th,  1 792,  and  a  quorum  of  the  Legis 
lature,  there  convened  on  the  5th,  having 
elected  Alexander  S.  Bullit  President  of  the 
Senate,  and  Robert  Breckrinridge  Speaker  of 


without  qualification  or  restriction  except  as 
to  time,  was  the  first  of  the  kind  enacted  by 
Congress,  we  claim  for  our  own  native  Com 
monwealth  the  honor  of  primogeniture.  And 
may  she  long  continue  to  enjoy  and  deserve 
her  birthright,  and  be  the  last  to  soil  or 
surrender  the  blessed  national  motto  of  her 
own  flag— "UNITED,  WE  STAND— DI 
VIDED,  WE  FALL." 

The  adoption  of  apolitical  constitution,  and 
such  a  constitution  in  the  wilds  of  Kentucky 
by  the  free  will  of  a  majority  of  its  free  inhab 
itants,  was  a  novel  and  interesting  spectacle. 
The  first  constitution — the  production  princi 
pally  of  George  Nicholas — Avas  a  very  good 
one — certainly  equal,  if  not  superior,  to  any 
other  state  Constitution  then  existing.  As  it 
provided  for  another  convention  at  the  end  of 
seven  years,  a  new  constitution  was  adopted 
in  1799.  Both  constitutions  were  alike  — in 
outline  the  same.  The  last  is  more  popular 
in  its  provision  for  the  election  of  Governor, 
and  less  so  in  the  mode  of  selecting  sheriffs 
and  clerks  ;  and  the  first  secured  moro  stabil 
ity  to  the  judiciary  by  prohibiting,  like  the 
federal  constitution,  any  reduction  of  salary 
during  the  tenure  of  judicial  office.  There  may 
be  reason  to  doubt  whether,  altogether  the  last 
is  better  than  the  first.  But  the  fundamental 
law  of  Kentucky,  as  it  is,  recognizes  the  car 
dinal  principles  of  the  declaration  of  independ 
ence  of  1776 — distributes  all  political  power 
among  three  co-ordinate  departments  of  re 
presentative  magistracy — divides  the  legisla 
tive  council;  intending  one  branch  to  operate, 
when  proper,  as  a  check  oji  the  passion  or  in 


ANNIVERSARY  ADDRESS 


considerateness  of  the  other — secures  theelec- 1  through  the  constitutional  ordeal,  and  not  be- 
tive  franchise  to  all  free,  white,  male  citizens  I  fore,  its  final  judgment  should  be  deemed  the 
twenty-one  years  old — and  provides  a  strong 


anchorage  of  stability  in  prescribing,  as  the 
only  lawful  mode  of  revocation  or  alteration, 


highest  attainable  evidence  of  right,  and  should, 
of  course,  then  be  supreme.  This  /s  the  prin 
ciple  and  the  end  of  the  entire  frame  and  of  all 


such  an  one  as  secures  the  .dispassionate  exer 
cise  of  reason  by  a  greater  number  of  citizens  j  Tllis  tiieoryj  if  observed  in  practice,  will  ex- 
than  that  which  will  ever  vote  on  the  grave  j  alt  representative  democracy;  any  other  must 
question  of  a  new  convention.  Kentucky  alwavs,  as  hitherto,  prostitute  and  degrade  it. 
pioneers  seem  to  have  well  understood-what  A  co^nstitution  lcgg  guarded  or  morj  (1emo- 
the  wise  men  of  antiquity  and  even  of  mo-  crfttic  thftn  ^  Qf  K°ntuck  would  autllorize 
dern  Europe^  never  knew-the  conservative  licentiousncgs  and  tcnd  to  anarchy,  the  most 


mocracy.     Our  State  Constitution  is  an  organ- 

ized  model  of  those  principles.     The  ultimate  |  ?uctlon  of  democracy  itself. 

object   of  the  entire  structure  was  to  secure 


Let  our  public 


fundamental  lights,  not  to  the  numerical  ma 
jority  who,  but  seldom,  if  ever,  ean  need  such 
extraneous  support,  but  to  the  minority  and 
each  individual  against  the  passions  or  in 


stitution  and  of  their  stations,  and  always  act 
upon  a  comprehensive  and  elevated  considera 
tion  of  their  responsibility  to  the  whole  con 
stituency  on  whom  their  acts  will  operate,  and 

justice  of  the  major  party— to" assure  the  pre-  to  their  deliberate  judgments,  and  to  God- 
dominance  of  reason  over  passion,  knowledge  '.and,  as  long  as  they  shall  thus  till  their  places 
over  ignorance,  and  moral  over  brute  force  ;  j  and  discharge  their  duties,  and  no  longer,  our 
to  prevent  a  mischievous  prevalence  of  j  ark  of  liberty  may  save  us  all  from  every  storm 

"  One   of  its  best  features  is 
own  stability.     Without 

ings  of  democracy,  unalloyed  with  its  curses,  this,  it  would  not  effectually  operate  as  a  su- 
by  organizing^  political  sovereignty  in  such  a  prcme  law;  for,  if  the  majority  could  abolish 

or  change  it  at  pleasure,  it  would  be  no  more 
inviolable  or  fundamental  than  an  act  of  ordi 
nary  legislation.  Our  fathers,  wise  and  pru 
dent,  were  not  willing  to  trust  all  their  or  our 


LW          ril\3Vtnu       ifr       1111OWII113  V  UUo  *-**•  VJ    *"",/    Df 

factious  designs  and  of  hasty  and  inconsiderate  i  and  every  flood.     Om 
public  opinion;  in  fine,  to   secure  the  bless- }  that  which  secures  its 

{•  I      11  _      1        _          'A!          '  J.   -.       _  .1       -  T     T  /V> 


manner  as  to  deprive  each  citizen  of  so  much 

natural  liberty  as  would  be  inconsistent  with 

the   practical   supremacy   of  just  and  .equal 

laws,  and,  at  the   same  time,  secure  to  each, 

against  the  governing  party,  as  much  of  natural  ri"~  ^  to  the  will  of  a  inajorYtv  withouVimposing 

right  as  it  can  be  the  end  of  the  best  State-       that   ma;ority   itself  su"ch   restrictions    as 

.government  to  guarantee.     In  every  breath  it  wouM  affiml  a  gatisfactorv  guarantv  against  a 

repudiates  the  suicidal  doctrine  that  the  will  icious  or  imjust  ^.$  *     "Such  is 

of  the  actual  majonty-unsanctioned  by   he  J 


the 


rule  of  conduct,  or  of  right.     And,  in  organi 


lawmadc  for  thcmsclvcs  an(1  their 

/  mcn  made  '™S  may 

lonS  as  inen  c<uftll    honcst> 


zing  the  representative  principle,  it  was 


tl    I  minister   at  its  altars,    in  its  own  pure  spirit 

T-»      i    •  A    •  i  c  i  v>  __i__n^j_"  . 


great  aim  of  our  fathers  to  secure  to  legisla 
tion  a  degree  of  responsibility,  deliberation, 
and  knowledge,  which  the  constituent  mass, 
under  the  most  favorable  circumstances,  could 
never  be  expected  to  embody.  And  in  this 
way  the}'  intended  to  make  legislation  the  safe 
work  of  reason  and  deliberation,  and  not  the 
monstrous  offspring  of  the  passions  or  incon 
siderate  emotions  of  an  impatient  or  irrespon 
sible  multitude.  Thus  only  can  "voxpopuli" 
be  "  vox  dei."" 

Though  complex  in  structure,  yet,  in  its 
practical  operation,  accord  ing  to  its  true  theory, 
this  constitution  exhibits  an  admirable  simpli- 


13ut  it  is  a  chart  of  one  only  of  a  constellation 
of  republics,  each  revolving  in  its  own  orbit 
round  a  common  centre,  and  altogether  con 
stituting,  for  all  purposes  common  to  all,  one 
pervading,  comprehensive,  supreme  Common 
wealth.  A  confederation  of  independent  sov 
ereigns  is  not  the  union  into  which  Kentucky 
was  admitted  as  a  member.  Her  union  is 
national  to  the  extent  of  all  national  interests, 
and  federal  only  so  far  as  her  own  local  inte 
rests  are  exclusively  involved.  She  arrogates 


no  authority,  as  a 
interests  common 


State,  to  control  rights  or 
to   her  co-states,  nor  does 


she  admit  the  authority  of  any  of  them  to  de- 


city  and  rare  wisdom.     And  its  wonderful  phi- !  cide  for  her  on  any  right  or  interest  of  hers, 
losophy  and   beauty  appear  in  this  pervading  As  to  all  national  concerns,  whether  foreign 


characteristic — that,  whilst  it  recognizes  theul- 


or  domestic — all  tinners  essential  to  the  main- 


timate  authority  of  the  popular  will,  it  intends  tenance  of  the  harmony,  justice  and  integrity 
that  the  representative  functionaries  in  each  of  the  Union,  to  its  nationality  and  ultimate 


department  of  sovereign  power,  and  especially 


national  supremacy — she  had,  by  the  act  of 


in  two  of  them,  shall,  by  faithfully  acting  ac-  becoming  a  party  to  the  Constitution  of  the 
cording  to  their  OAvn  honest  and  enlightened  i  United  States,  wisely  surrendered  all  her  sov- 


judgments,  arrest  the  tide  of  passion  or  ignor 
ance  until  the  constituent  body  shall  have  had 
sufficient  time  for  thorough  investigation  and 
dispassionate  conclusions,  but  that,  after  the 


creignty  to  the  common  government,  instituted 
for  the  sole  purpose  of  preserving  that  sacred 
Union  by  regulating  and  controlling  all  those 
great  interests  which  no  one  State  could  regu- 


public  mind   shall   have   been  thus   distilled  late  or  control  consistently  with  the  rights  of 


ON  THE  SETTLEMENT  OF  KENTUCKY. 


277 


others.  It  was  in  the  cause  of  that  union  that  |  sealed  her  patriotism  with  her  richest  blood. 
Kentucky  has  often  raised  her  arm  and  shed  her  |  By  the  victory  of  Orleans,  Kerituckians  glori- 
blood — and  to  preserve  it  in  its  purity  andjously  contributed  to  immortalize  Kentucky 
original  design  will  she  not,  if  ever  necessary,  valor  and  their  federal  leader's  name — and  by 
spill  the  last  drop  that  animates  her  patriotic  their  gallant  support  of  the  lamented  Harrison 
heart?  ".Yes,"  is  the  response  of  those  nodding  |  in  the  North-western  campaigns  of  the  last 
plumes.  [war,  they  made  him,  too,  President  of  the 

Such  is  the  constitution  and  such  are  the !  United  States.  How  many  more  Presidents 
principles  handed  down  to  us  by  the  generation  i  she  may  give  to  the  nation,  from  her  own 
that  is  gone  or  fast  going  away.  The  spirits  bosom,  time  alone  caii  disclose.  Already  two 
of  the  dead  and  the  prayers  of  the  yet  living  of  her  sons  are  enrolled  among  the  distin- 


conjui*e  us  to  defend  them. 

The  power  and  value  of  our  local  constitu 
tion  have  been  severely  tried;  and  never  more 
signally  than  in  the  violent  controversies  about 
a  "new  election'-'  of  Governor  in  1816-17 — 
and  "relief "  and  "new  court"  from  1822  to 
1827 — each  of  which  agitated  our  State  almost 
to  civil  convulsion,  and  in  both  of  which  the 
sober  intelligence  of  the  people  finally  pre 
vailed  over  the  earlier  impulses  of  passion  and 
the  promptings  of  parti/an  leaders,  which,  had 
they  not  been  checked  in  the  first  case  by  a 
firm  and  honest  Senate,  and  in  the  last  by  a 
pure  and  enlightened  judiciary,  would,  as 


guished  few  from  whom  the  approaching  choice 
is  to  be  made;  and  she  has  many  more  who 
arc  qualified  for  the  same  distinction.  By  her 
principle?,  her  conduct,  and  her  high  moral 
power,  Kentucky,  though  only  fifty-one  years 
old,  has  acquired  an  exalted  and  priceless 
character,  and,  having  contributed  to  the  pop 
ulation  and  strength  of  other  and  younger 
Commonwealths,  is  now  honored  by  the  sig 
nificant  title  of  "OLD  KAINTUCK."  Her 
blood  is  good.  The  richest  of  this  noble 
blood  flowed  in  the  viens  of  our  untitled  pio 
neers,  than  whom  a  more  heroic,  hardy,  and 
honest  race  of  men  and  women  never  gave 


almost  all  now  admit,  have  trampled  under  the  i  birth  and  fortune  to  any  nation  on  earth.     As 
feet  of  an  excited  majority  some  of  the  most  to  this  world's  trash  they  were  poor  enough; 


important  provisions  of  the  organic  law.  Our 
Senators  and  Supreme  Judges  then  firmly  and 
nobly  performed  the  task  allotted  to  them  by 
the  constitution,  by  faithfully  doing  what  their 
departments  were  organized  to  effect.  They 
did  not  follow  the  too  contagious  example  of 


they  had  no  blazoned  heraldy,  and  but  little  of 
scholastic  lore.  But  they  were  blessed  with 
robust  health,  sound  heads,  and  pure  hearts — 
practical  sense,  simple  and  industrious  habits, 
dauntless  courage,  social  equality,  virtuous 
education,  and  habitual  reverence  for  human 


illustrious    demagogues  by  stifling  their   own  I  and  divine  law.     These  were  the  elements  of 


consciences,  prostituting  their  own  judgments, 
and  committing  treason  to  the  constitution  and 
their  stations,  in  subservience  to  the  passions 
and  submission  to  the  clamor  of  the  unreflect 
ing  multitude.  They  saved  the  constitution 
and  commended  the  cause  of  constitutional 
democracy.  Any  other  course  by  such  func 
tionaries  must  always  tend  to  unhinge  the 
constitution — to  destroy  its  stability — to  per 
vert  its  spirit — and  finally,  to  subvert  democ 
racy  itself. 

Our  legislation  has  generally  been  consistent 
with  our  constitution  and  promotive  of  the 
public  welfare.  But  the  besetting  sin  of  par 
tial  enactments,  and  of  hasty,  crude,  and  ex 
cessive  legislation,  has  sometimes  stained  our 
legislative  history;  and  in  no  class  of  cases 
more  frequently  than  that  of  Divorces  of  hus 
band  and  wife,  in  Avhich,  since  1805,  but  never 
before,  our  legislatures  have,  in  many  cases, 
seemed  to  assume  the  judicial  function  granted 
exclusively  to  the  judiciary  by  the  most  impor 
tant  provision  of  the  constitution. 

But,  under  her  State  Constitution,  essen 
tially  as  it  is,  Kentucky  lias  already  grown  to 
a  matured  and  distinguished  Republic — ma 
tured  in  Knowledge,  in  social  organization, 
and  in  physical  improvement — and  distin 
guished  for  lofty  patriotism  and  eminent  talents 
in  pence  and  in  war.  Her  arm  never  hesitated 
— her  voice  never  faltered  in  the  cause  of  con 
stitutional  liberty  and  union.  She  has  often 


our  first  social  organization  and  civil  state. 
Better  never  existed.  "What  a  generation  was 
Kentucky's  first!  Who  could  be  so  falsely 
proud  as  to  be  ashamed  of  such  an  ancestry? 
Who  among  us  would  prefer  to  trace  his  pedi 
gree  to  a  nobler  stock?  To  that  primitive  race 
— to  that  "root  out  of  dry  ground" — are  we  in 
debted,  not  only  for  our  present  comforts,  but 
for  all  those  qualities  which  have  most  honor 
ably  distinguished  the  name  of  "Kentuckian/* 
Let  us  never  prove  ourselves  unworthy  of  our 
origin.* 

Most  of  the  pilgrim  band,  who  made  the 
first  footsteps  of  civilization  on  our  virgin  soil, 
have  consecrated  by  their  bones  the  land  of 
their  choice.  Many  of  them  lived  long- 
enough  to  enjoy  the  first  fruits  of  their  toils — 
a  few — but  very  few — survivors  yet  linger 
here  and  there  among  us  as  monuments  of  the 
memorable  age  that  is  past,  and  of  the  noble 
race  that  is  almost  gone.  This  venerable 
group  deserves  a  passing  tribtite. 

SURVIVING  FATHERS  AND  MOTH 
ERS  OF  KENTUCKY'S  DAWN!— We  sa 
lute  you  as  the  honored  relics  of  eventful 
days  to  our  country  and  to  us,  which  we,  your 
posterity,  never  saw.  Yet  spared  by  Provi 
dence  to  commemorate  the  adventurers  of 
the  hey-day  of  your  youth,  may  you  still  be 
permitted  to  gleam  forth,  yet  a  little  while 
longer,  the  light  of  the  generation  now  gone 


ADBEESlS 


before  you,  and  also  to  bless  the  children  who 
may  live  after  yon. 

Yon  feel  this  day  what  none  but  you  can 
feel.  You  saw  Kentucky  in  her  native  wildness. 
You  well  remember  the  manifold  difficulties 
you  met  and  overcame.  You  remember  the 
friends  you  have  lost  and  the  children  you 
have  buried.  You  now  review  the  scenes  of 
your  dark  and  bloody  days — look  around  for 
the  companions  of  your  sufferings  and  triumphs 
and  sigh  that  they  arc  gone  and  you  alone 
here.  But  you  live  to  reap  the  rich  harvest 
sowed  by  your  SAveat  and  your  blood.  You  be 
hold  Kentucky  as  she  is  now  before  the  middle 
of  the  nineteenth  century,  and  contrast  her  with 
what  she  was  in  the  last  quarter  of  the  eigh 
teenth.  Full  of  years  and  full  of  honor,  you 
bless  God  for  what  you  have  been  and  all  you 
have  suifered  and  seen.  May  you  still  be  per 
mitted  to  live  until  you  can  know  that  the 
fruits  of  your  lives  will  long  bless  the  country 
and  the  children  you  will  soon  leave  behind. 
And  then,  in  the  light  of  that  bright  assurance, 
may  each  of  you,  as  your  last  earthly  moment 
approaches,  be  able  to  say  from  your  heart — 
"Now  Lord  lettest  thou  thy  servant  depart  in 
peace — for  mine  eyes  have  seen  thy  salva 
tion." 

But  among  you  here  is  one — the  lonely 
trunk  of  four  generations — to  whom  the  heart 
of  filial  gratitude  and  love  must  speak  out  one 
emotion  to-day.  Venerable  and  beloved  MOTH 
ER!  How  often  have  we  heard  from  your  ma 
ternal  lips  the  story  of  Kentucky's  romantic 
birth — of  "the  hard  unnter  of  '79" — of  all  the 
achievements  and  horrors  of  those  soul-rending 
days? 

You  have  known  this  land  in  all  its 
phases.  You  have  suffered  with  those  that 
suffered  most,  and  sympathised  with  those 
who  have  rejoiced  in  Avell-doing  and  the  pros 
pect  before  them.  You  have  long  survived 
the  husband,  who  came  with  you  and  stood 
by  you  in  your  gloomiest,  as  well  as  your 
brightest  days,  and  has  long  slept  with  buried 
children  of  your  love.  And  now,  the  sole  sur 
vivor  of  a  large  circle  of  cotemporaneous  kin 
dred  and  juvenile  friends — a  solitary  stock  of 
three  hundred  shoots — with  a  mind  scarcely  im 
paired,  you  yet  linger  with  us  on  earth  only 
to  thank  Providence  for  his  bounties  and  pray 
for  the  prosperity  of  your  flock  and  the  welfare 
of  the  land  you  helped  to  save  and  to  bless. 
And  when  it  shall,  at  last,  be  your  lot  to 
exchange  this  Canaan  below  for  the  better 
Canaan  above,  may  you,  on  the  great  day  of 
days,  at  the  head  of  your  long  line  of  posterity 
and  in  presence  of  the  assembled  universe,  be 
able,  with  holy  joy,  to  announce  the  glad  ti 
dings — "Here  Lord  are  we  and  all  the  children 
thou  hast  ever  given  us." 

Hut  the  ashes  of  many  of  the  first  settlers  of 
Kentucky  are  scattered,  my  countrymen,  in 
foreign  lands.  And  those  of  the  first  Hunter, 
who  named  many  of  her  rivers  and  creeks,  lie 
undistinguished  on  the  banks  of  the  turbid 


Missouri  whither  he  had  removed  as  soon  as 
Kentucky  could  stand  alone,  and  where  he 
died  in  1820,  with  his  rifle  by  his  side. 

Yet  though  our  favored  land  is  not  honored 
as  the  repository  of  the  earthly  remains  of 
Daniel  Boone,  it  was  loved  by  him  to  the 
last.*  After  exploring  the  richest  portions 
of  the  great  west  in  the  same  virgin 
state,  he  declared  that,  all  in  all,  there  was  but 
one  Kentucky.  That  Kentucky,  far  more  ad 
vanced  in  improvement  than  even  Boone 
could  have  anticipated,  is  now  ours.  It  was 
given  to  us  by  our  fathers  to  be  enjoyed,  and 
improved,  and  transmitted  to  our  children  as 
an  abode  of  plenty  and  peace,  liberty  and  light. 

This  is  indeed  a  rich  inheritance.  A  child 
of  the  Revolution — born  in  the  gloom  of  a  then 
distant  and  bloody  wilderness — our  beloved 
Commonwealth  is  even  now  an  illustrious 
monument  of  the  wonderful  progress  of  Amer 
ican  civilization  and  of  the  beneficence  of  the 
American  principles  of  human  government,  the 
67th  anniversary  of  whose  public  announce 
ment  to  the  world  we  thi«j  day  commemorate. 
Look  at  her! — bright  as  the  sun — beautiful  as 
the  morning — and  hopeful  as  the  seasons. 
Her  lap  is  full — her  arm  strong — her  head 
sound — eloquent  her  lips,  and  true  her  heart. 
Though  young  in  years,  she  is  old  in  wisdom 
and  matured  in  all  that  dignifies  and  adorns  si 
great  State.  Her  policy,  her  arms  and  her 
eloquence,  have  swelled  the  volume  of  Amer 
ican  renown;  her  soldiers,  and  her  orators  are 
admired  in  foreign  lands;  and  she  has  a  son, 
whose  eloquence,  diplomacy  and  statesman 
ship  are  known  throughout  the  civilized  world, 
and  who  lias  been  pre-eminently  distinguished 
among  the  conscript  fathers  of  our  own  union. 
Her  faith,  too,  is  as  untarnished  as  her  prowess 
is  undoubted;  and  now,  when  ostensible  bank 
ruptcy  and  virtual  repudiation  of  solemn  obli 
gations  are  but  too  fashionable  among  individ 
uals  and  States,  Kentucky  has,  as  she  ought, 
stood  firm  on  her  integrity,  and,  Kentuckian- 
like,  her  credit  is  full  up  to  high-water  mark. 

Yet,  with  all  our  blessings,  there  are  some 
among  us  who  complain  of  hard  times,  and  ap 
pear  to  be  dissatisfied  with  our  self-denying- 
policy  and  the  present  posture  of  our  local 
affairs.  Let  them  remember  that  the  unsullied 
character  of  their  State  is  every  thing;  and 
that,  without  this,  there  can  be  nothing  earthly 
which  honorable  men  could  enjoy  as  they 
would  wish.  And  let  them  also  contrast  their 
condition,  whatever  it  may  be,  with  that  of  our 
first  settlers,  and,  when  they  remember  that 
these  repined  not  in  their  peculiar  destitution 
— even  in  the  winter  of  '"79" — they  will  sure 
ly  feel  rebuked  for  their  unreflecting  ingrati 
tude  to  their  noble  predecessors  and  a  kind 
Providence  for  their  own  comparatively  envia 
ble  allotments. 

*In  1845,  the  remains  of  Boone  and  his  wife 
were  brought  by  Kentucky,  to  the  cemetery  in 
sight  of  her  Capitol,  and  there  interred. 


ON  THE  SETTLEMENT  OF  KHNTUCKY. 


279 


But  gratitude  to  our  adventurous  fathers  and 
mothers,  as  well  as  duty  to  ourselves  and  pos 
terity,  demands  that  we  should  maintain  and 
improve  the  blessings,  physical,  social,  and 
civil  which  we  have  inherited.  The  physical 
improvement  of  our  State,  great  as  it  has  been, 
is  but  just  begun.  We  must  persevere  in  pru 
dent  improvements  for  developing  our  latent 
resources,  facilitating  our  intercourse,  increas 
ing  our  population,  augmenting  our  Avealth, 
and  thus  still  adding  to  our  local  comforts  and 
attractions. 

It  is  our  sacred  dut\  to  all  the  friends  of 
liberty  and  equality,  dead,  living,  or  yet  to  be 
born,  to  maintain  inviolate  the  supremacy  of 
law,  and  especially  fundamental  law — and,  as 
indispensable  to  this  end,  we  must  uphold 
that  political  and  social  organization  which 
will  afford  the  greatest  security  against  the 


wise  and  virtuous,  the  moral  virtues  that  dig 
nify  and  the  rational  graces  that  most  adorn 
our  nature  are  the  tests  of  merit  and  the  only 
passports  to  favor.  Let  us  then  be  careful  to 
imprint  on  the  hearts  of  our  children  the  cheer 
ing  republican  truth — 

"The  rank  is  but  the  Guina's  stamp, 
The  man's  the  Gou'd  for  all  that." 
Every  child  in  the  Commonwealth  should 
be  educated  in  such  a  manner  as  to  enable 
them  all  to  be  good  and  useful  citizens.  This 
is  not  benevolence  merely,  but  obvious  policy. 
In  a  free  State,  where  the  majority  govern, 
what  social  organization  or  code  of  human 
laws  can  secure  the  rights  of  all  or  any  un 
less  the  governing  mass  be  intelligent  and 
moral?  And  would  not  the  rich  lose  more  by 
the  ignorance  and  vices  of  the  undisciplined 


popular  vices  and  passions  which  will  afflict  j poor  tha"  ^e  cost  of  any  prudent  system  of 


the  Commonwealth  even  in  its  best  estate. 
And  must  we  not,  as  hitherto,  resolutely  main 
tain  the  union  of  the  States,  and,  as  indispen 
sable  to  that  end,  the  supremacy  of  national 
authority  over  national  affairs?  Will  Ken 
tucky  ever  be  guilty  of  the  suicidal  act  of 
rupturing  the  vital  Siamese  artery  which  unites 
our  26  States,  as  one  in  blood  and  destiny? 
One  and  all  Kcntuckians  answer  no — NEVER 
— Ohio  echoes  "nccerf — and  "nc.vcr"  is  re 
verberated  from  the  Allcghany  to  the  Rocky 
Mountains. 

Our  characters  and  institutians  can  be  main 
tained  only  by  the  virtues  that  produced  them. 
It  is  moral  power  that  makes  a  State  free 


enlightenment  and  amelioration?  It 
is  the  interest  of  each  and  of  all  that  every 
one  should  be  acquainted  with  the  elements  of 
the  useful  arts  and  of  natural,  moral,  and  po 
litical  science. 

But  of  all  laws,  that  of  the  heart  is  the  most 
supreme  among  men;  and  the  finger  of  God 
can  alone  effectually  inscribe  that  law  on  the 
tablet  of  the  mind.  This  is  the  only  unfailing 
prop  of  just  and  secure  democracy.  But  it  is 
not  the  metaphysics  of  schools,  nor  the  polem 
ics  of  dogmatists,  nor  the  belligerent  theolo 
gies  of  sects,  which  exalt  or  save  a  State.  It 
is  the  religion  of  the,  heart — pure,  simple,  and 
*od-,liko — ;that  Christian  religion,  which  sub- 


and  truly  great.  It  is  this  to  which  we  are  in-  dues  bad  passions,  eradicates  vicious  propen- 
debtedfor  the  glory  and  prosperity  of  Kentucky,  i- sides,  and  infuses  humility,  self-denial,  and 
Do  we  intend  to  preserve  and  increase  those  universal  benevolence.  This  it  is  which  equal- 


national  treasures?  Then  we  must  preserve 
and  increase  the  stock  of  moral  power  left  us 
by  the  generation  we  arc  succeeding.  Indus 
try,  jin!i!>c  spirit,  intelligence,  simplicity  of  man- 
lers,  charity  j  self-denial,  and  social  equality,  are 


i/.cs  and  renovates  social  THEII  and  effectu 
ally  guards  all  his  rights,  person  and  po 
litical.  Wherever  it  prevails,  liberty  and 
peace  abound;  whenever  it  is  absent  or  is 
mocked  by  scepticism  or  hypocrisy,  anarchy 


the  elements  of  this  conservative  and   cnno-    and  despotism  must,  sooner  or  later,  be  the 


Ming  power.  And,  instead  of  improvement,  is 
there  not  danger  of  deterioration  in  all  these 
particulars?  We  have  more  refinement,  and 
luxury,  and  literature,  but  arc  we  equal  to 


people's  doom. 

Could  the  whole  pioneer  band,  living  and 
dead,  now  bless  their  own  Kentucky  by  one 
valedictory  counsel,  they  would,  all  'with  one 


oice,  say  to  her — "Educate  your  children — all 
all — and  be  sure  to  teach  them  riyht.     On  this 


our  fathers    and   mothers    in   the    sound    and 

sturdy  qualities  that  made  Kentucky  what  she 

has  been?     Are  there  not  general  symptons  of  j  hangs  the  destiny  of  Kentucky,  and,  perhaps, 

physical  degeneracy?     May  not  the  rising  gen- 1  that  also  of  the  American  Union." 

cration  be  the  victims  of  a  false  pride  and  per-  '      This  last  remnant  of  our  sacred  band  of  pi- 


nicious  education,  already  too  prevalent?  We 
must  correct  the  procedure.  If  we  desire  the 
honor,  happiness,  or  health  of  our  children, 
the  reputation  of  our  State,  or  the  preservation 
of  its  civil  liberty,  we  must  change  our  systems 
of  physical  and  moral  education.  Sound  con 
stitution,  vigorous  health,  industrious  habits, 
pure  and  fixed  moral  principles,  and  that  sort 
of  practical  sagacity  and  rectitude  which  these 
produce,  constitute  the  best  of  all  human  lega 
cies.  Without  these  blessings  ancestral 
wealth  or  honor  will  generally  curse  rather 
than  bless  its  unqualified  recipient.  With  the 


oncers  and  that  also  "of  our  revolutionary  sol 
diers  and  Statesmen  is  now,  with  trembling 
steps,  descending  the  final  slope  of  their  earthly 
pilgrimage  to  sleep  with  the  compatriot  friends 
who  have  gone  before  them;  and  soon,  very 
soon,  not  one  will  be  left  behind  to  tell  the 
story  of  their  eventful  lives,  or  behold  on 
earth  the  beautiful  country  blessed  by  their 
noble  virtues  and  commended  to  Heaven  by 
their  dying  prayers.  But  shall  they  ever  die 
in  the  heart  of  Kentucky?  When  the  last  of 
the  Patriarchs  shall  have  returned  to  the  dust, 
we  may  rear  to  their  memory  a  towering  pyra- 


280 


ANNIVERSARY  ADDRESS 


mid  of  earth,  on  whose  lofty  summit  the  Bald 
Eagle  may  build  its  nest  and  hatch  birds  of 
liberty  for  ages — and  that  majestic  mausoleum, 
pointing  to  the  skies,  may,  centuries  hence, 
sublimely  stand  alone  the  historic  monument 
of  our  heroic  age  and  heroic  race.  But  is  it 
not  due  to  the  memory  of  the  past,  as  Avell  as 
to  the  enjoyment  of  the  present  and  the  hopes 
of  the  future,  to  signalize  our  own  wonderful 
age  by  other  and  more  useful  memorials  which 
may  attest,  to  succeeding  generations,  otir  own 
title  to  the  gratitude  of  our  posterity  and  our 
kind?  Is  it  not  our  duty  to  our  fathers,  and 
to  ourselves,  and  to  our  children,  and  to  all 
mankind,  to  preserve  inviolate  and  improve 
the  rich  deposit  of  moral  and  political  truth 
and  of  moral  and  political  organization  left 
with  us  in  trust  for  ourselves  and  our  fellow 
men  of  every  clinic  and  of  every  succeeding 
age?  And  can  this  sacred  duty  be  performed 
without  maintaining  the  principles  and  practi 
cing  the  self-denying  virtues  of  our  glorious 
age?  And  can  we  safely  transmit  the  blessings 
of  civil  and  religious  liberty  to  our  children  or 
commend  organized  democracy  to  mankind 
unless,  by  faithful  discipline  and  rational 
teaching,  physical,  moral  and  political,  Ave 
train  up  those  children  in  habits  of  truth,  in 
dustry,  and  morality?  If  such  wholesome  dis 
cipline  be  neglected,  or  parental  authority  be 
perverted,  by  false  pride  or  mistaken  indulgence 
will  not  the  legacy  of  self-government  prove  a 
curse  rather  than  a  blessing  to  the  unworthy 
recipients  to  whom  we  arc  so  anxious  to  be 
queath  it?  Should  we  not,  therefore,  exalt 
our  own  age  and  prove  ourselves  worthy  of 
the  manifold  blessings  AVC  enjoy  by  cultivating 
and  exemplifying  all  the  social  and  civic  vir 
tues  of  truth,  temperance,  industry,  justice, 
public  spirit,  parental  fidelity,  and  submission 
to  the  laws  of  our  country  and  of  God?  And, 
whilst  AVC  should  CArer  maintain  the  integrity 
and  stability  of  our  institutions,  should  AVC  not 
prudently  repair,  rectify  and  improve  them  so 
far  as  a  Aviso  experience  may  shoAv  that  their 
great  end  requires  modification  and  improve 
ment?  Without  such  occasional  infusions  of 
new  elements  of  conservative  vitality  they 
might,  in  time,  either  explode  or  expire  from 
decay.  But  if,  Jn/o-likc,  they  ever  require 
rcnoAration  or  repair,  let  them,  vlr^o-like,  still 
retain  their  original  identity;  for  the  efficacy  of 
our  OAVU fundamental  laws  depends  on  sentiment, 
at  last.  We  all  know  how  AVC  loAre  the  ancient 
oak  that  sheltered  our  infancy,  or  the  old  armed 
chair  that  rocked  our  mother.  Nor  can  AVC  be 
unmindful  of  the  fact  that  we  feel  more  vener 
ation  for  the  Avork  of  our  fathers  than  for  that 
of  our  own  hands;  for  AVC  sec  daily  exemplifi 
cations  of  the  latin  aphorism — "vitera  extnUi- 
mvs,  recentium  /HCW/O.S/."  And  what  is  it,  so 
much  »s  antiquity  and  historic  glory,  that  has, 
so  long  and  so  Avondcrfully,  secured  the  sta 
bility  and  supremacy  of  the  old  statutes  of  Eng 
land  Avhich  constitute  all  that  is  called  the 
British  Constitution? 


But  the  most  glorious  and  enduring  monu 
ment  which  can  distinguish  our  age  of  enjoy 
ment  and  peace  is  that  Avhich  should  testify 
that  we  have  been  faithful  to  our  children  and 
made  them  fit,  in  body,  in  habitude,  and  in 
mind,  for  the  enjoyments  and  the  Avorks  of 
civil  liberty  that  await  their  entrance  on  the 
great  theater  which  AVC  must  soon 'leave. 

Thus,  and  only  thus,  may  AVC,  of  this  gener 
ation,  evince  our  gratitude  to  those  of  our 
countrymen  Avho  have  gone  before  us,  and  se 
cure  the  grateful  remembrance  of  those  Ayho 
shall  come  after  us.  Thus  Kentucky  may  dis 
charge  the  duties  of  her  seniority  and  "local 
position  in  this  great  valley,  and  show,  to  her 
younger  sisters  of  the  Avest,  the  only  pathAvay 
to  safe  liberty  or  renoAvn.  And  thus,  too,  in 
the  ultimate  and  moral  ascendency  of  this 
valley  of  hope  that  may  be  destined  to  teach 
the  Avorld,  she  may  be  instrumental  in  the  re 
demption  and  regeneration  of  mankind.  All 
this  AVC  might,  perhaps,  accomplish; — all  this, 
therefore,  AVC  should  attempt.  Who  knoAvs 
that  AVC  might  not  make  Kentucky,  morally 
and  politically,  (as  Avcll  as  physically,)  the 
heart  of  our  Union,  and  thereby  also,  in  time, 
the  heart  of  the  whole  earth.  Let  us  try.  If 
AVC  fail,  yet  the  honest  effort  Avill  be  honorable. 
But  if  AVC  succeed,  everlasting  glory  is  ours. 
And  even  if  AVC  or  our  children  should  be 
doomed  to  see  the  genius  of  constitutional  de 
mocracy  exiled  from  this  land  of  its  birth,  AVC 
may  be  consoled  by  the  hope  that  it  Avill  take 
refuge  in  some  more  congenial  soil  and  propi 
tious  age;  for  what  we  have  already  felt  and 
seen  under  the  shadoAV  of  its  Avingri  assures  us 
that  its  cause  is  the  cause  of  Heaven  and  must 
finally  prevail. 

Whether  AVO  look  to  prophecy,  the  intima 
tions  of  natural  theology,  or  the  Avondcrful 
events  of  the  last  half  century,  AVC  have  reason 
to  hope  that  our  race  is  destined  to  attain  on 
earth  a  moral  rectitude  and  elevation  far  more 
general  and  ennobling  than  any  human  excel 
lence  hitherto  exhibited.  Even  noAv  the  pro 
gress  of  general  amelioration  is  rapid  and  per 
vading.  The  average  career  of  mankind  is 
upAvard,  as  Avell  as  onward.  Christianity, 
rational  philosophy,  and  constitutional  liberty, 
like  an  ocean  of  light,  arc  rolling  their  united 
and  resistless  tide  over  the  earth  and  may,  ere 
long,  cover  it  as  the  waters  do  the  great  deep. 
Doubtless  there  may  yet  be  partial  revulsions. 
But  the  general  movement  Avill,  as  we  trust, 
be  progressive  until  the  millcnial  sun  shall 
rise  in  all  the  effulgence  of  universal  day. 

Eor  that  momentous  day  what  shall  Avehave 
done?  And,  Avhen  it  comes,  Avill  that  star- 
spangled  banner  still  Avave,  Avith  all  its  stars 
and  stripes  undimmcd  by  time,  and  "E  PLU- 
11IBUS  UNUM"  still  emblazoned  on  its  blue 
Heavens?  And  will  that  halloAvcd  light  beam 
on  Kentucky's  flag — and  will  that  flag  then,  as 
noAv,  bear  on  its  folds  the  national  motto — 
"United  we  stand,  divided  toe  fall?" 


ON  THE  SETTLEMENT  OF  KENTUCKY. 


281 


And  all  this  may  possibly  depend  on  the 
conduct  of  this  generation.  Then  let  us  all, 
here  under  this  metropolitan  sky,  make,  for 
ourselves  and  our  children,  a  sacramental 
pledge  that  we  will  try  to  promote  the  final 
triumph  of  Light  over  Darkness,  and  of  Right 
over  Might;  and  that,  so  far  as,  under  Provi 
dence,  the  event  may  depend  on  our  conduct, 
Kentucky's  twinned  ensign,  with  its  motto  un 
changed,  shall  bathe  in  the  rays  of  millennial 
sunshine. 

But  the  fashion  of  this  world,  like  the  shad 
ow  of  a  cloud,  flitteth  away.  Mutability  and 
decay  are  inscribed  on  all  things  earthly. 
Thebes,  and  Tyre,  and  Palmyra,  and  Babylon, 
the  downfall  of  empires,  and  the  ruins  of  the 
old  world,  are  not  the  only  memorials  of  this 
solemn  truth.  In  sepulchral  tones  it  is  echoed 
from  wastes  of  time  scattered  OA'er  our  own 
continent.  Successive  generations  who,  ages 
ago,  inhabited  this  fair  land,  have  passed  away 
and  left  not  a  trace  of  their  destiny  behind. 
Here  and  there  a  mound  of  earth  attests  that 
they  once  were; — but  all  else  concerning  them 
is  buried  in  oblivion.  Tradition  tells  not  their 
tale.  The  signers  of  our  Declaration  of  Inde 
pendence,  and  the  signers  of  the  Constitution 
of  the  United  States,  arc  all  gone  to  another 
36 


world.  Even  the  graves  of  our  departed  pio 
neers  are  generally  undistinguished  and  un 
known.  We  tread,  daily,  on  their  ashes  un 
conscious  and  unmoved.  Already  we  have 
embalmed  their  memories  in  our  nursery  tales 
and  begin  to  look  on  them  as  the  legend  he 
roes  of  a  romantic  age  obscured  by  time.  "We 
ourselves  must  soon  sleep  with  our  fathers, 
and  be  to  earth  as  if  we  had  never  been; — and 
our  children  and  their  children  will  soon  follow 
us  and  repose  with  the  nations  of  forgotten 
dead.  Our  institutions,  too,  and  even  this  be 
loved  country  of  ours,  and  all  it  contains,  must 
perish  forever. 

Yet  we  have  hopes  that  ar  cimmortal — inter 
ests  that  are  imperishable — principles  that  are 
indestructible.  Encouraged  by  those  hopes, 
stimulated  by  those  interests,  and  sustained  by 
and  sustaining  those  principles,  let  us,  come 
what  may,  be  true  to  God,  true  to  ourselves, 
and  faithful  to  our  children,  our  country,  and 
mankind.  And  then,  whenever  or  wherever  it 
may  be"  our  doom  to  look,  for  the  last  time,  on 
earth,  we  may  die  justly  pround  of  the  title  of 
"2£entuckifm,"  and,  with  our  expiring  breath, 
may  cordially  exclaim — Kentucky,  as  she  was; 
— Kentucky,  as  she  is; — Kentucky,  as  she  will 
be;— KENTUCKY  FOREVER. 


PRELECTION. 


In  the  Spring  of  the  year,  1844,  Dr.  Abner  Baker — a  graduate  of  the 
Louisville  Medical  College,  and  born  in  Clay  county,  Ky.,  26th  March, 
1813 — was  married  to  a  daughter  of  James  White,  of  said  county,  and 
who  was  a  brother  of  John  White,  once  speaker  of  the  House  of  Repre 
sentatives  of  the  United  States.  Baker  and  his  wife  lived  with  Daniel 
Bates,  whose  wife  v/as  Baker's  sister.  Shortly  after  the  marriage,  he 
charged  Bates,  and  her  own  father,  and  others,  with  illicit  intercourse 
with  her,  (Baker's  wife)  and  sometimes  in  his  own  presence.  And,  appre 
hending  also  that  Bates  was  seeking  his  life,  he  killed  him  by  a  pistol 
shot,  and  went  immediately  to  James  White's,  and  proclaimed  and  ex 
ulted  in  the  act!  He  was  tried  by  an  examining  court,  and  acquitted  on 
the  ground  of  insanity.  He  then  was  taken  to  Cuba  for  health,  under 
the  advice  of  medical  and  other  friends.  Bates,  not  dying  immediately 
after  the  shot,  published  a  will,  by  which  he  bequeathed  $10,000,  to  be 
expended  in  the  conviction  of  Baker.  The  executors  procured  from 
Gov.  Ovvsley  a  proclamation  offering  a  high  reward  for  the  apprehension 
of  Baker  during  his  absence  in  the  South.  On  being  advised  of  the 
proclamation,  Baker's  family  brought  him  back  to  Clay  county,  and  sur 
rendered  him  to  the  custody  of  the  law,  to  answer  an  indictment  for  mur 
der.  Though  the  prosecuting  party,  composed  of  influential  and  wealthy 
men,  had  a  decided  sway  in  that  small  and  frontier  county,  Baker's 
counsel  and  friends,  feeling  confident  that  he  could  not  be  convicted,  de 
clined  to  move  for  a  change  of  venue,  and  went  into  the  trial  in  July, 
1845.  The  executors  employed  W.  H.  Caperton,  Silas  Woodson,  and 

Caldwell,  to  aid  the  official  attorney  for  the  commonwealth,  W.  B. 

Moore.  The  jury  (under  duress,  as  many  believed)  returned  a  verdict 
of  guilty,  and  Judge  Qjiavles  overruled  a  motion  for  a  new  trial.  The 
following  appeals  to  the  Governor  were  then  made  for  a  pardon.  In  ad 
dition  to  which,  petitions  feigned  by  numerous  multitudes  of  citizens  of 
several  counties,  and  by  lawyers,  among  the  most  eminent  of  Ken 
tucky,  were  also  laid  before  the  Governor,  backed  by  strong  and  thrilling 
addresses  to  him  by  Baker's  father,  arid  brothers,  and  sister,  (Mrs.  Cozier) 
none  of  which  will  be  herein  republished. 

To  prevent  escape  the  Governor  had  the  jail,  in  which  Baker  was 
confined,  guarded  by  about  200  men,  under  the  command  of  Gen.  Peter 
Dudley,  of  Frankfort.  On  the  18th  of  September,  1845— the  3rd  of  Oc 
tober  being  the  day  fixed  for  execution — Baker's  father  and  his  brother, 
H.  Baker,  believing  that  the  Governor,  who  had  not  then  intimated  to 
them  any  decision  on  the  petitions  for  a  pardon,  had  the  power  to  direct 
an  inquisition,  and  that  Gen.  Dudley's  troops  would  not  obey  a  writ  of 
habeas  corpus  from  a  Circuit  Judge,  submitted  to  him  a  petition  for  an  in 
quest  as  to  the  then  state  of  Baker's  mind,  on  the  ground,  verified  by  affi 
davits,  that  he  was  then  a  maniac,  and  could  not  therefore,  in  that  con 
dition,  be  lawfully  executed.  The  Governor  requested  Mr.  Crittenden, 
Secretary  of  State,  to  request  from  Mr.  Robertson,  as  counsel  for  Baker, 
a  statement  of  the  reasons  why  he  thought  that  the  power  to  do  what 


PBELECTION.  383 

was  asked  was  in  the  Executive.  Mr.  R.  instantly  communicated  his 
reasons,  but  received  no  response  from  the  Governor.  Believing  after 
wards  that  orders  had  been  despatched  to  Gen.  Dudley  for  the  execution 
of  Baker,  Judge  Buckner  was  applied  to  for  a  writ  of  habeas  corpus,  for 
the  purpose  of  having  the  inquisition.  He  granted  it;  but,  satisfied  that 
it  would  not  be  obeyed  without  the  Governor's  sanction,  wrote  to  him  ac 
cordingly — but  the  Governor  declined  doing  any  thing,  and  it  was  then 
(only  a  day  before  that  of  the  execution)  too  late  to  do  anything  more 
for  the  rescue  of  the  unfortunate  Baker,  who  fell  a  victim  to  ignorance, 
prejudice,  and  his  own  unquestionable  insanity  of  mind. 

The  following  extracts  are  republished  from  a  book,  entitled,  "BAKER'S 
TRIAL."  The  object  of  the  republication  of  them  here  is  to  show  that 
Mr.  ROBERTSON'S  speech,  which  succeeds  them,  was  sustained  in  its  facts 
and  its  principles,  and  that  his  doomed  client  ought  to  have  been  sent 
to  a  Lunatic  Asylum,  as  a  maniac,  instead  of  being  hung  as  a  mur 
derer. 


TRIAL  OF   DR.    ABNER  BAKER, 


To  Governor  Oicsley: 

The  undersigned  asks  leave  to  make  the 
following  representations  to  your  Excellency, 
respecting  the  ease  of  Dr.  A.  Baker,  lately 
tried  for  the  killing  of  D.  Bates.  Having  at 
tended  the  trial,  examined  the  accused,  and 
heard  the  evidence,  he  trusts  that  the  follow 
ing  facts  and  deductions  will  be  accredited 

On  examination,  he  found  said  Baker  in  a 
high  state  of  mental  and  physical  excitement — 
his  pulse  quicker  than  natural,  his  extremities 
cool — his  countenance  wild  and  unnatural — 
the  muscles  of  his  face  flaccid  and  of  a  pecu 
liar  hang;  and  his  eyes,  when  a  particular  sub 
ject  was  alluded  to,  becoming  singularly  wild 
and  red,  as  if  radiating  red  rays,  and  his  con 
versation  incoherent,  erratic  and  irrational. 
From  his  appearance,  his  condition  and  his 
conversation  alone,  I  would  not  doubt  that  he 
was  insane. 

But  the  facts  proved  on  the  trial,  indepen 
dently  of  the  foregoing  circumstances,  would 
leave  no  room  for  doubt,  that  Dr.  Baker  was 
insane  as  to  his  wife  and  Daniel  Bates,  when 
and  before  he  killed  the  latter.  Among  other 
facts,  it  was  proved  that,  before  the  marriage 
of  the  Doctor,  his  father  and  other  members  of 
the  family  apprehended  that  he  was  insane; 
and  after  the  marriage,  and  before  the  killing 
of  Bates,  his  father  communicated  confiden 
tially  to  others,  and  in  a  letter  to  his  sons  at 
Knoxville,  Tennessee,  that  he  was  insane.  He 
(the  Doctor)  believed  that  Bates  and  others 
had  combined  to  prevent  his  marriage,  and  to 
destroy  his  reputation  and  his  life.  He  be 
lieved  that  Bates  maltreated  his  sister,  (the 
wife  of  Bates,)  and  was  endeavoring  to  take 
her  life;  and  that  it  was  necessary  for  him  to 
remain  in  the  family  to  protect  her.  He  be 
lieved  that  Bates  was  attempting  his  own  life, 
and  had  also  employed  his  slaves  to  assassin 
ate  him.  A  few  days  after  his  marriage,  he 
published  the  conviction  that  his  wife,  when 
not  mor«  than  nine  years  of  age,  had  been 
prostituted  by  the  gentleman  who  was  her 
teacher,  and  whom  he  charged  also  with  pros 
tituting,  in  like  manner,  his  whole  school,  or 
nearly  the  vhole — and  all  the  circumstances 
of  manner,  time,  place,  and  signs,  he  imagined 
and  stated  most  minutely.  He  also  charged  , 
many  other  persons  with  illicit  intercourse  j  _ 

vith  his  wife,  some  time  before,  and  some  that  he  was  convinced  that  Bates  would  kill 
time  after  marriage — and  among  them  was  an  nim  unless  he  should  kill  Bates  first.  It  also 
uncle,  an  ugly  negro,  his  brother-in-law,  appeared  that  he  expressed  the  conviction 

that  he  had  violated  no  law  of  Heaven  or 
earth.  He  made  no  attempt  to  escape,  but  en 
deavored  to  go  to  his  wife's  father's,  and 
missing  the  way,  staid  all  uight  at  Hugh 


her,  there  in  his  presence.  He  alleged  that 
Bates  had  gotten  his  (Baker's)  young  sister — 
with  child.  He  asserted  that,  at  Lancaster, 
about  a  month  after  the  marriage,  his  wife 
had  an  abortion,  which  was  shown  by  other 
testimony  to  have  been  impossible.  He  said, 
and  persisted  in  declaring  that,  at  Lancaster, 
his  mother,  every  night,  after  he  and  his  wife 
were  asleep,  opened  their  chamber  door,  up 
stairs,  and  let  another  man  into  his  wife, 
whom  one  night  he  made  jump  through  a  win 
dow,  by  drawing  his  pistol  on  him.  He  also 
charged  his  mother  with  keeping  a  licentious 
house.  He  stated  to  two  of  his  brothers  that 
he  tried  the  teacher's  sign  on  a  married  lady 
in  Knoxville,  whom  the  teacher  had  educated, 
and  that  she  understood  the  signs  perfectly. 
He  denies  insanity,  and  says  he  would  rather 
be  shot  than  acquitted  on  that  ground — in 
sisted  that  he  was  able  to  prove  every  fact  he 
had  ever  stated,  and  was  offended  with  his 
counsel  because  they  would  not  defend  him  in 
that  way  alone.  Many  other  facts  of  a  similar 
character  were  proved;  and,  from  all  the  facts, 
I  did  not  doubt  that  he  labored  under  an  in 
sane  delusion  as  to  his  wife  and  Bates;  and 
under  the  influence  of  a  morbid  derangement 
of  the  brain,  imagined  facts  that  did  not  ex 
ist;  for  the  supposed  existence  of  which  there 
was  no  evidence  whatever,  and  of  the  false 
hood  of  which  no  argument  or  proof  could 
convince  him;  because  a  diseased  brain  com 
municated  false  images  and  distorted  objects, 
which  made  all  the  impression  on  the  mind 
that  the  evidence  of  sound  sense  could  make 
as  to  what  is  true. 

I  have  no  doubt  that  the  killing  of  Bates 
was  the  offspring  of  that  insane  delusion — was 
the  act  of  a  deranged  mind,  and  would  never 
have  occurred  if  Baker's  mind  had  not  been 
deranged. 

It  was  also  proved  that,  after  Baker  had 
left,  Kentucky,  he  returned  to  settle  his  affairs, 
and  that  before  he  got  to  Bate's  furnace,  which 
he  had  to  pass,  he  was  informed  by  several 
persons  that  Bates  had  said  he  would 
kill  him  on  sight  if  h«  ever  returned,  and  that 
Bates  and  his  negroes  were  armed  for  that 
purpose;  and  he  was  advised  to  postpone  pass 
ing  the  furnace  until  after  night.  I  believe 


Bates,  and  her  own  father.  He  imagined  and 
asseverated  that  Bates  and  her  father  came  to 
the  bed  in.  which  he  and  his  wife  were  sleep 
ing,  at  Bate's  house,  and  had  intercourse  with 


TRIAL  09  DR,  ABNER  BAKBR. 


285 


White's,   and  seemed  unconscious  of  having 
done  any  wrong  in  killing  Bates. 

There  was  no  testimony  showing  any  mo 
tive  for  hostility  to  Bates,  and  a  disposition  to 
kill  him,  except  his  convictions  as  to  his  treat- 


This  is  a  novel  and  interesting  case.  It 
will  be  reported  and  become  a  leading  case; 
and  allow  me  to  say  that,  in  my  undoubting 
judgment,  no  case  ever  occurred  which  was 
more  entitled  to  the  interposition  of  the  exec 


ment  of  his  wife,  and  of  which  supposed  mis-  j  utive,  whose  power  to  pardon  was  given  for  no 
treatment,  there  was  no  other  evidence  than  j  class  of  cases  more  clearly  than  for  such  as 
his  own  statements,  in  either  case.  this. 


That  Baker  believed,  and  vet  believes  firm- 


I   am   well  satisfied  that  no  informed  man 


ly,  all  the  facts  he  repeatedly  stated  respect-  j  could  have  heard  the  trial  and  seen  Baker, 
ing  Bates  and  his  wife,  there  can  be  no  doubt.  |  without  being  convinced,  beyond  a  doubt. 
He  urged  his  counsel  to  suffer  him  to  prove  {that  he  is  now  insane,  and  was  even  more  so 
them,  all  of  which  he  insisted  he  could  prove  when  he  killed  his  brother-in-law.  And  it 


prove 

beyond  question!.  If  he  had  been  sane,  and 
so  unaccountably  diabolical  as  to  wish  to 
destroy  Bates  and  the  character  and  happines* 


does  seem  to  me  that  he  who,  upon  a  full 
knowledge  of  all  the  facts,  doubts  Baker's  in 
sanity,  would,  by  such  incredulity,  exhibit 


UUSliU^    JJttLCO     ttllU.    L11U  ^ilii-iclULCJ.    ajlU  ilctppiilCS»  ,    ottiiiKJ  ,       «<_»u.na,       VJ        .  .^J.v>v».ujj.l.jr  ,     ^.t.u.nj 

of  his  wife  without  any  imaginable  motive,  he  j  himself  strong  evidence  of  monomania — and  I 
would  have  told  tales  more  plausible — some-   honestly  think   that  the  execution   of  Baker 
thing  that  might  have  been  believed;  and  sure 
ly  he  would  not  have  charged  Bates  with  im 


pregnating  his  (Baker's)  own  young  sister,  or 


would  be  a  judicial  murder. 

/  never  asked  for  the  pardon  of  a  convict, 


because  the  cases,  in  my  judgment,  are  rare, 


his  mother  with  prostituting  her  house.  !  in  which  the  innocent  al'fc,"  through  ignorance 

Ever  since  the  case  of  Hadfield,  in  1794,  j or  passion,  convicted.  But  I  feel  sure,  beyond 
persons  in  Baker's  condition,  have  been  in-  any  doubt,  that  such  has  been  the  doom  of  Dr. 
variably  acquitted  or  pardoned— and  a  strong-  B^er,  and  that  he  ought  not  to  be  punished, 
er  case  than  Baker's  docs  not  appear  in  either  !  but  placed,  (as  he  will  be,  in  the  event  of  a 
medical  or  criminal  jurisprudence.  If  you  |  pardon,)  in  our  Lunatic  Asylum 
have  any  doubt  as  to. the  case  of  Baker,  I  would  j 
be  obliged  to  you  to  examine  carefully  Ray's  j 
Medical  Jurisprudence  on  Insanity,  and  Es-  i 
quirol  and  the  case  of  Hadfield — that  also  of  1 
Lord  Orford,  and  of  the  man  who  shot  at 
President  Jackson;  in  all  of  which  cases  there 


Respectfully, 

G.  ROBERTSON. 
Lexington,  July  25,  1845. 

Postscript. 
P.  S.  The  foregoing  was  written  when  I 

i  did  not  know  that  a  transcript  of  the  evidence 
were  acquittals  on  the  ground  of  insane  delu-  I  Qn  ^  wou,d  be  laid 


sion  on  one  subject  or  more,  whilst  there  was 
apparent  rationality  on  others;  and  in  none  of 
which  was  there  any  inquiry  as  to  whether 
the  accused  had  a  general  knowledge  of  right 
or  wrong;  but  in  all  of  which,  it  was  taken  for 
granted  that  the  act  being  the  offspring  of  in 
sanity,  the  accused,  as  to  that  act,  should  be 
treated  as  he  should  have 
totally  insane  on  all  subjects.  There  is,  in  no 
asylum,  one  case  in  twenty  in  which  the  lu 
natic  does  not  reason  well  and  is  not  ration 
al  on  some  subjects.  Intellectual  insanity  is. 
in  fact,  nothing  else  than  the  morbid  imagina 
tion  of  false  facts.  The  reasoning  of  luna 


you.     .but 

having  been  since  furnished  with  a  certified 
copy  of  that  evidence,  I  present  to  you  that  as 
more  satisfactory  than  my  synopsis  of  it.  But, 
as  Dr.  Cross'  opinion  was  formed  on  this  gen 
eral  statement  of  mine,  I  must,  for  the  benefit 
of  the  opinion  of  that  eminent  gentleman,  ask 


been,  had  he  been   your  attention  to  this  statement,  for  the  pur- 
'-      rri  -----  :-   -  ----  ' 


tics  is  generally  correct — their  premises  only 
are  false,  being  merely  imaginary. 


pose  of  seeing  that  Dr.  C.'s  opinion  on  those 
facts,  would  certainly  be  his  opinion  on  the 
certified  evidence.  And  I  think  that  I  hazard 
nothing  in  the  opinion  that  no  intelligent  jurist 
or  medical  man  could  be  found,  who  would 
entertain  any  other  opinion  when  possessed  of 


full  information  on  the  subject. 

G.  R. 

The  jury,  as  you  will  see  from  their  petition,  1  Opinion  of  Dr.  ,/a.s1.  (''.  Cross,  on  the  Synopsis  of 

•xi-rt      onfl^-fi /-,*•!     ^.-f     T>  .-»l,-««>^.     ^^^ *i 1..-J.    J*_ 1  .        *    7--/"  .  .      ~    ~  "~  —       ~  ~~ 


were  satisfied  of  Baker's  insanity — but  found 
him  guilty  because  he  was  rational  on  some 
subjects!  It  is  almost  impossibls  to  make  a 
jury  understand  such  a  case  correctly;  and,  in 
this  case,  it  was  impossible  to  procure  R  jury 
that  had  not  been  excited  against  the  prison 
er,  and  formed  an  opinion  of  his  guilt.  Even 
the  judge,  and  all  the  four  prosecuting  attor 
neys,  at  first,  denied  the  existence  of  particu 
lar  insanity  or  unsoundness  of  mind  on  par 
ticular  subjects.  But  they  all,  I  believe,  (and 
the  Commonwealth's  Attorney,  I  know,)  be 
came  convinced  of  it  during  the  trial.  And  I 
have  no  doubt  that  a  jury  of  enlightened  med 
ical  men  or  jurists,  could  not  have  been  se 
lected  who  would  have  hesitated  five  minutes 
to  find  a  verdict  of  not  guilty. 


evidence  prepared  by  Geo.  Robertson,  Esq. 

From  the  statement  within  made  of  the 
facts,  and  which  Judge  Robertson  assures  me 
were  proved  on  the  trial  of  Dr.  Abner  Baker, 
for  the  murder  of  Daniel  Bates,  I  have  no  hes 
itation  iu  saying  that  said  Baker  is,  and 
was  at  the  time  of  the  murder,  laboring  under 
monomania,  if,  indeed,  there  has  not  been  a 
complete  subversion  of  the  faculty  of  judging 
between  what  is  right  and  wrong.  This  being 
the  case,  Baker  cannot  be  regarded  as  respon 
sible  for  his  conduct,  and  therefore,  should  not 
be  subjected  to  the  penalty  which  has  been 
decreed  by  the  jury. 

"JAMES  c.  CROSS, 

Late  Prof,  in  the  Med.  School  of  Transylvania. 


286 


TEIAL  OF  DR.  ABNER  BAKER, 


To  His  EXCELLENCY,  WILLIAM  OWSLET, 

GOVERNOR  OF  KENTUCKY: 
Tlie  undersigned,  composing  the  jury  that 
found  a  verdict  of  guilty,  in  the  prosecution  of 
Aimer  Baker,  for  the  alledged  murder  of 
Daniel  Bates,  feel  it  their  duty  to  recommend 
him  to  your  Excellency  as  a  fit  object  of  Ex 
ecutive  mercy.  Whilst  we  felt  constrained,  by 
our  opinion  of  the  law  and  the  evidence,  to 
pronounce  a  verdict  of  guilty,  we  are  satisfied 
that  the  said  Baker,  when  he  killed  said  Bates, 
and  before,  and  since,  was  in  a, state  of  mental 
excitement  and  delusion  respecting  his  wife 


believed  Dr.  Baker  thought  were  true  at  the 
time  he  told  them.  And  from  the  evidence 
they  believed  that  Dr.  Baker  was  deranged 
upon  those  subjects  and  not  a  fit  subject  for 
example;  but  from  our  understanding  of  the 
law  applied  to  the  evidence,  we  had  to  find  a 
verdict  of  guilty.  I  do  further  certify,  that  if 
the  delusions  which  were  proved  upon  Baker 
had  been  facts,  it  would  have  been  a  full  and 
good  excuse  for  killing  him.  And  do  father 
certify,  that  we  did  not,  in  the  jury  room,  con 
sider  the  works  read  on  the  part  of  the  de 
fence  to  be  good  authority,  which  works  were 


and  said  Bates,  which  may  be  considered  in-  Beck's  Medical  Jurisprudence,  Kay's  Medical 
sanity.  And  although  we  were  of  the  opinion  Jurisprudence,  and  other  works,  which,  if  we 
that  he  was,  at  the  time  of  the  killing,  able  to  had  taken  them  to  be  good  authority,  we  should 
discriminate  right  from  wrong,  yet  we  believed  I  have  been  obliged  to  acquit,  or  found  a  verdict 
that  his  said  state  of  mind  was  such  as  to  en-  I  of  not  guilty,  from  the  evidence.  And  it  was 
title  him  to  a  pardon.  And  we  further  state  {considered  that  the  Commonwealth's  Attorney 
that  the  prisoner  is,  from  his  appearance,  and  was  a  sworn  officer,  and  was  bound  to  give 


from   the   evidence,  in   a  worse   condition  of 


mind   at 
killing. 


this   time,  than  at  the  time  of  the 

JULIUS   X  ROBINSON. 
ABRAHAM  CARTER, 
WM.  BISHOP, 
WM.  B.  ALLEN, 
BRYSON  M    BISHOP, 
THOS.  COOK. 

We  say,  from  his  present  appearance,  in  our 
own  judgment,  we  have  no  doubt  the  prisoner 


is  insane. 


L.  HOLCOMB, 
HENRY  HENSLEY. 


This  is  to  certify  that  the  undersigned  was 
one  of  the  jury  who  tried  Abner  Baker  on  a 
charge  of  murder,  in  killing  Daniel  Bates;  and 
do  further  certify,  that  it  wag  proved  by  sev 
eral  witnesses  that  Dr.  Abner  Baker  had,  some 
three  or  four  months  previous,  and  at  different 
times,  told  them  that  Daniel  Bates,  he  believed, 
intended  to  kill  him — that  Daniel  Bates  had 
formed  schemes  and  conspired  with  his  ne 
groes,  and  to  carry  those  schemes  into  effect,  he 
had  sent  his  negroes  out  in  ambush  armed 
with  guns — and  that  they  believed  that  Baker 
thought  at  the  time  he  told  them,  that  such 
were  facts.  It  was  also  proved  by  several  wit 
nesses,  that  Dr.  Baker  had  told  them,  at  differ 
ent  times,  that  Daniel  Bates  treated  his  wife, 
who  is  Baker's  sister,  badly;  and  that  Bates 
had,  at  different  times,  in  the  night,  when  his 
wife  was  in  her  bed,  wielded  his  Bowie  knife 
over  her  head  and  throat  and  threatened  her 
with  instant  death;  and  that  he  believed  that 
Bates  intended  to  kill  her,  and  that  he  was 
staying  at  Bates'  to  protect  his  sister,  and  they 
believed  that  Dr.  Baker  thought  that  the  same 
was  time.  It  was  also  proved  by  several  wit 
nesses,  that  Dr.  Baker  told  them  that  his  wife 
was  a  whore,  and  that  Daniel  Bates  had  se 
duced  his  wife  and  had.  intercourse  with  her 
while  he  was  boarding,  with  his  wife,  at,  Bates'; 
and  that  her  teacher  had  kept  her  since  she 
was  nine  years  of  age,  which  statements  they 


the  whole  law  governing  us  in  the  finding  of 
our  verdict.  And  some  of  the  Jury  called 
upon  the  Court  for  some  instruction,  and  from 
the  general  instructions  given,  we  construed  it 
to  go  so  far  as  to  make  the  prisoner  guilty,  if 
!  he  knew  that  there  was  such  a  being  as  a  God, 
'  or  such  laws  in  existence  as  would  punish  the 
killing  of  a  man;  or  knew,  generally,  right 
from  wrong.  But  if  we  had  understood  that 
the  instruction  would  have  excused  him  if  he 
sincerely  believed  that  he  was  called  upon  to 
kill  Bates  in  self-defence,  or  was  called  upon 
by  some  superior  power  to  kill  Bates  for  his 
fancied  injuries,  we  should  have  been  obliged 
to  have  found  a  verdict  of  not  guilty. 

ABRAHAM  CARTER. 
CLAY  COUNTY,  set: 

This  day,  Abraham  Carter  personally  ap 
peared  before  the  undersigned,  one  of  the 
Commonwealth's  Justices  of  the  Peace,  and 
made  oath  that  the  facts  stated  in  the  foregoing 
certificate  are  true. 

Given  under  my  hand  this  5th  of  Agust,  1845. 
J.  H.  GARRAD,  J.  P. 

This  is  to  certify,  that  the  undersigned  are 
a  part  of  the  Jury  who  set  upon  the  case  of 
the  Commonwealth  rs.  Abner  Baker  upon  a 
charge  of  murder,  in  killing  Daniel  Bates. 
And  do  further  certify,  that  it  was  proved  by 
several  witness  that  Baker  had  told  them 
some  three  months  or  more  previous  to  the 
killing  of  Bates,  that  Bates  had  formed  secret 
schemes  to  kill  Baker  at  different  times,  and 
that  at  different  times  he  had  sent  his  negroes 
out  in  ambush,  armed  with  guns,  to  kill  Baker 
which  they  believe  was  believed  by  Baker  to 
be  true.  It  was  also  proved  by  several  wit 
nesses  that  Baker  had  told  them  at  different 
times,  that  Bates  treated  his  (Bates')  wife 
badly,  who  was  and  is  Baker's  sister,  and  that 
Bates  had  threatened  her  life,  and  he  was 
staying  at  Bates'  to  protect  his  sister,  and 
that  Bates  had,  during  different  times  in  the 
night,  wielded  his  Bowie  knife  over  her  head, 
threatening  her  with  instant  death;  which 


TBIAL  OF  BE,  ABNER  BAKES. 


287 


statement  the  witnesses  believed  that  Baker 
thought  was  true.  And  also,  it  was  proved 
by  several  witnesses  that  Baker  had  told  them 
Bates  had,  at  different  times,  had  intercourse 
with  his  wife  at  his  (Bates')  own  house, 
where  he  boarded  at  the  time  with  his  wife; 
and  that  her  uncles  and  her  old  teacher  had 
likewise  had  intercouse  with  her,  and  that  her 
teacher  had  kept  her  since  she  was  about  nine 
years  old,  and  they  believed  that  Baker  thought, 
at  the  time  he  told  them,  that  the  same  was 
true,  and  from  the  evidence,  they  believed  that 
Baker  was  deranged  upon  the  above  subjects; 
which  evidence  will  be,  or  is  already  laid  be 
fore  you,  as  we  are  told.  And  from  the  evi 
dence  they  do  not  believe  that  he  is  a  proper 
subject  for  example;  but  from  what  we  con 
sidered  the  law  we  had  to  find  a  verdict  of 
guilty.  "We  do  father  certify,  that  if  the  de 
lusions  which  were  proved  upon  Baker  had 
not  been  delusions,  but  facts,  that  Baker  would 
have  been  justified  or  excused  in  the  killing  of 
Bates.  We  do  further  certify,  that  we  do  not 
look  upon  the  authorities  which  were  read  on 
the  part  of  the  defence  as  law,  which  authori 
ties,  or  some  of  them,  were  Beck's  Medica] 
Jurisprudence,  Kay's  Medical  Jurisprudence, 
and  other  works;  but  they  considered  that  the 
Attorney  for  the  Commonwealth  was  sworn 
and  bound  to  give  the  law  which  governed  us 
in  the  finding  of  our  verdict,  and  upon  that 
impression,  together  with  the  general  instruc 
tion  given  by  the  Court  at  the  request  of  the 
Jury,  we  found  our  verdict. 

H.  HENSLEY, 
JULIUS  M  ROBINSON, 
L.  HOLCOMB, 
ZADOCK  PONDER. 
CLAY  COUNTY,  set: 

This   day,  Henry  Hensley   personally   ap 
peared   before   the   undersigned,   one  of  the 
Commonwealth's  Justices  of  the  Peace  for  the 
county  of  Clay,  and  made  oath  that  the  facts 
stated  in  the  foregoing  certificate  were  true. 

Given  under  my  hand  this  —  day  of  Au 
gust,  1845.  THO.  McWHORTER,  J.  P. 

MT.  VERXON,  July,  1845 
Dear  Governor  : — I  ani  informed  that  there 
will  be  an  application  to  your  Excellency  fo 
the  pardon  of  Abner  Baker,  who  was  con 
demned  by  a  Jury  of  Clay  county  for  th( 
murder  of  Daniel  Bates.  From  the  evidence 
in  the  case,  I  am  inclined  very  strongly  to  tb<3 
belief  that  he  now  is,  and  has  been  for  some 
two  years  at  least,  laboring  under  monomania 
The  evidence  will  all  be  laid  before  you,  from 
which  you  can  form  your  own  opinion  ;  and 
I  should  [be  very  much  gratified  to  see  him 
pardoned.  W.  B.  MOORE,  Att'y  for  Com'th 

LEXINGTON  July  21st,  1845. 
To  His  Excellency,  William  Owsley  : 

Dear  Sir  : — I  beg  leave  to  make  the  follow 
ing  representation  to  your  Excellency  respect 
ing  the  case  of  Dr.  Abner  Baker,  lately  tried 
in  Clay  county,  Ky.,  for  shooting  his  brother 
in-law,  D.  Bates.  I  was  induced  to  attend 


he  trial,  and  whilst  there  examined  Dr.  Baker 
n  jail  before  the  trial  came  on.  I  found  him 
n  a  high  state  of  mental  excitement,  with 
manifestations  of  bodily  derangement ;  such 
as  quick  pulse,  cool  extremities,  countenance 
wild  and  unnatural,  the  muscles  of  his  face 
laccid  and  of  a  peculiar  hang,  with  a  fierce, 
wild,  and  ferocious  expression  of  his  eyes — 
his  latter  symptom  was  greatly  aggravated 
when  he  dwelt  on  those  subjects,  or  delusions, 
that  lead  to  the  unfortunate;  and  unnatural 
murder. 

I  learned  his  appetite  and  digestion  were  ir 
regular,  and  his  sleep  imperfect  and  irregular. 
When  in  conversation,  his  manner,  and  tones 
f  voice  all  indicated  mental  alienation.  I 
icard  the  material  circumstantial  evidence  on 
both  sides,  detailing  as  well  the  manner  and 
circumstances  Attending  tho -murder,  as  his 
previous  and  subsequent  conduct,  the  motives 
that  seemed  to  impel  him  to  commie  the  act, 
the  probable  provocation,  &c.  etc.  From  all 
the  facts  and  circumstances  of  the  ca^e,  I  be 
came  thoroughly  satisfied  he  labored  under 
mental  derangement  caused  by  a  morbid  state 
of  the  brain,  and  so  expressed  myself  under 
oath  to  the  Jury  sworn  and  empanneled  to 
try  the  case. 

I  could  embody  copious  extracts  from  the 
testimony  given  by  the  witnesses  on  trial,  as 
evidence  of  the  correctness  of  the  professional 
opinion  given.  It  would  be,  however,  on  mv 
part,  uncalled  for  and  irrelevant,  especially  as 
your  Excellency  will,  in  all  probability,  be 
furnished  with 'it  in  an  authentic  and  accurate 
form.  From  a  thorough  conviction  of  the  in 
sanity  of  Dr.  Baker,  before  and  at  the  time  of 
his  shooting  his  brother-in-law,  D.  Bates,  1 
beg  leave  most  respectfully  and  earnestly  to 
commend  him  to  your  Excellency  as  a  proper 
subject  for  Executive  clemency  and  mercy. 
With  assurances  of  great  respect, 
I  am  your  obedient  servant. 
W.  H.  RICHARDSON,  M.  D. 

To  William  Owsley,  Governor  of  Kentucky  : 

The  undersigned,  members  of  the  Medical 
Faculty  of  Transylvania  University,  having 
heard  from  Dr.  Richardson  a  recital  of  the 
material  facts  proved,  as  well  by  the  Common 
wealth  as  by  che  accused,  in  the  late  prosecu 
tion  of  Dr.  A.  Baker,  for  killing  his  brother- 
in-law  Daniel  Bates,  in  Clay  county,  in  this 
State,  feel  it  to  be  their  duty,  as  well  as  their 
privilege,  to  declare  to  your  Excellency  their 
conviction  that  before,  and  at  the  time  of  said 
homicide,  the  said  Baker  was  of  unsound 
mind,  in  fact  and  in  law  ;  that  he  labored, 
without  doubt,  under  an  insane  delusion,  es 
pecially  respecting  his  wife  and  said  Bates, 
which  is  sometimes  characterized  as  monoma 
nia,  and  which,  in  various  forms  and  degrees, 
is  the  most  prevalent  kind  of  insanity,  intel 
lectual  and  moral :  and  they  cannot  hesitate 
to  express  the  confident  opinion  that  the  kill 
ing  of  Bates  Ava?  the  direct  offspring  of  the 
said  insanity  :  and  that,  while  it  may  be  that 
Baker  was  conscious  of  right  and  wrong  gen 
erally,  or  in  the  abstract,  he  was,  from  the 


288 


TRIAL  OF  DR,  ABNER  BAKBB, 


proofs,  so  far  insane,  on  this  particular  sub 
ject  and  occasion,  as  to  have  been  impelled  to 
the  homicide  by  an  irresistible  motive  of  de 
lusion,  without  a  consciousness  of  a  violation 
of  the  law  of  God  or  of  man  in  that  particu 
lar  act. 

"Wherefore,  they  have  no  difficulty  in  com 
ing  to  the  conclusion,  that  said  Baker  is  a 
proper  object  of  Executive  mercy  ;  that  nei 
ther  the  letter  nor  the  policy  of  our  criminal 
code  would  require  ,  nor  justice  and  humanity 
permit  his  conviction  and  execution  for  the 


I  feel  no  hesitancy  in  giving  it  as  ray  opinion, 
that  Dr.  Baker  had  been  before,  and  was  at  the 
time  of  the  murder,  affected  with  monomania, 
upon  the  subject  of  his  wife's  chastity,  and 
ideas  naturally  connected  with  it;  with  symp 
toms  indicating  a  strong  tendency  to  degene 
rate  into  general  derangement. 

I  would  further  state,  as  my  opinion,  that 
there  can  be  no  doubt  that  there  are  many 
cases,  in  which  the  most  acute  observation 
fails  to  detect  disorder  of  the  understanding 
upon  more  than  a  single  idea  or  train  of  ideas. 


blind  and  insane  act  of  killing  his  said  bro-  j  Examples  of  such  are  reported  by  all  the  best 
ther-iri-law.  They,  therefore,  without  hesita-  authors  upon  the  subject,  and  I  have  had  un- 
tiou,  but  with  great  respect  for  your  Excel-  der  my  charge  a  number  of  them.  And  I  can 
lency,  and  solicitude  for  the  result,  beg  leave  (from  my  experience,  join  heartily  in  the  state- 
to  unite  ther  petition  with  that  of  others  for  - 
the  pardon  of  said  Baker. 

THOS.  D.  M1TCHELL,M.  D. 
Prof.  Materia  Medica  and  Therap.  Tran.  Univ. 

L.  G.  WATSON", 
Prof.  Theory  and  Practice,  Tran.  University. 


LEXINGTON, 
Subsequently  to  signing 


July  25th,   1846. 
the  foregoing  pa 


per,  the  undersigned  has  heard  the  testimony 
giveniri  the  case,  and  has  no  hesitation  to  say 
that  his  opinion  in  the  premises  is  confirmed. 

THOS.  MITCHELL,  M.  D. 
Prof.  Materia  Medica  and  Therap,  Tran.  Univ. 

The  undersigned  has  heard  the  evidence 
in  the  case  of  Dr  Baker,  and  conceives  it  a  case 
of  monomania  as  conclusively  made  out  as 
ran  be  found  upon  record. 

B.  W.  DUDLEY,  M.  D. 

July  25th,  1845. 

LEXINGTON,   July  25th,   1845. 


ment  advanced  by  one  versed  ivi  this  subject 


That  all  cases 
which    previous 


of    crimes    of   violence,    in 
mental    disease   is  proved, 


should  have  the  whole  benefit  of  the  presump 
tion  that  such  disease  may,  in  a  moment,  run 
into  irresponsible  mania,  and  the  unhappy 
patient  be  judged  fit  for  confinement  and  not 
for  punishment." 

With  the  facts  of  the  case  before  me,  I 
should  feel  that  I  was  omitting  a  duty  to  jus 
tice  and  humanity,  to  withhold  my  earnest  re 
commendation  of  Dr.  Baker,  as  an  object  de 
serving,  if  not  demanding,  Executive  cle- 
mencv. 

JNO.  K.  ALLAN. 
Superintendent Ky.,  Lunatic  Asylum. 

His  Excellency,  William  Cwsley. 

LOUISVILLE,  August  1st,  1845. 
To  His  Excellency,  William  Owsley, 

Governor  of  Kentucky  : 
Sir  : — We,  the  undersigned,  would  respect 
fully  represent  to  your  Excellency,  that  after 


Gov.  Owsley: — From  the  fact  that  I  have!  a  careful   examination  of  the  testimony  taken 


been   officially   connected  with  the   Lunatic 
Asvlurn,  at  this  place,  I  have  had  more  ex- 

«',  •  „  •  n    i 


in  the  case  of  Dr.  Abner  Baker,  charged  with 
the  murder  of  Daniel  Bates,  we  are  of  opinion 


than  for  the  gibbet. 

We  have  the  honor  to  remain 
Your  Excellency's  ob't  servants. 

CH.  CALDWELL,    U 
L.  P.  YANDELL,  M. 
H.  MILLER.  M.  D. 
S.  D.  GROSS,  M.  D. 


.  D. 
D. 


tended  opportunities  of  becoming  acquainted, ;  that  said  Baker  is  of  unsound  mind,  and  con- 
both   practically  and  theoretically,  with  the  !  sequently  a  fitter  subject  for  a  lunatic  asylum 

diseases   of    the  human  rrm>d,    (in   all  their  h1       f  "  ^ !vt"4 

endless  variety)  than  ordinary  members  of  the  j 
profession.  Therefore,  I  have  presumed,  at  i 
the  solicitation  of  Dr  Baker's  friends,  to  give  f 
you  a  most  unqualified  opinion,  after  a  critical ! 
examination  of  the  evidence  in  the  cuse,  that  j 
before,  and  at  the  time  of,  the  ^ommissioll  of  i 
the  act,  for  which  he  has  been  convicted,  he 

was  of  unsound  mind,  and  should  mot  be  held  \  LANCASTER,  July  24th,  1845. 

responsible,  either  in  law  or  in  mora\s,  for  an  ,      To  His  Excellency,  William  Owsley  : 
act  committed  under  such  a  state  of  mind.  Sir  — Having  been   called  upon  to  examine 

Respectfully,  &c.  jthe   testimony  adduced  on  the  trial  of  Dr.  A. 

S.  M.  LETCH  ER.       Baker,  (who  is  now  under  sentence  of  death,) 

1>.  S/ — I  have  not  conversed  with  a  Physi-  j  we  proceeded  to  do  so  in  as  thorough  a  man- 
ciau  who  don't  concur  in  the  above  opinion,  iner  as  the  cicrumstances  would  allow,  and 

S.M.  L.      ,  have  unanimously   come    to  the    conclusion, 

from  the  extraordinary  character  of  the  testi- 

K.KNTUOK.Y  LUNATIC  ASYLUM,  July  24, 1845.  jmony  of  the  case,  that  the  said  Baker,  ?t  the 

1  have  examined  fully  the  testimony,  both  I  time  of  committing  the  crime  for  which  he 
on  the  part  of  the  Commonwealth,  and  the  de-  i  now  stands  convicted,  must  have  been  labor- 
fendant,  in  the  case  of  Dr.  Abner  Baker  for  |  ing  under  that  form  of  mental  alienation  called 
the  murder  of  Daniel  Bates.  After  having  j  monomania.  That  tKere  is  such  a  disease  is 
seen  a  great  number  of  insane  persons,  and  |  not  questioned  by  any  scientific  man  of  the 
after  an  uninterrupted  intercourse  with  more  j  present  day.  We  would,  therefore,  respect- 
than  two  hundred  of  them  for  twelve  months, '  fully  direct  the  especial  attention  of  the  Ex- 


TLIAL  OF  DR,  ABNER  BAITER. 


289 


ecutive  to  the  facts  of  the  case,  and  implore 
the  interposition  of  his  power. 

Respectfully,  your  friends,  &c. 

O.P.  HILL.M.  D. 

WM.  H.  PETTUS.M,  D. 

JENNINGS  PRICE,  M.  D. 

L.  M.  BUFORD,  M.  D. 

The  undersigned  Physicians  of  Danville, 
having  been  called  to  examine  the  evidence 
submitted  to  them,  as  given  before  the  Circuit 
Court  of  Clay  County,  Kentucky ,  in  the  case 
of  the  Commonwealth  against  Dr.  Abner  Ba 
ker,  tried  for  the  murderjof  Daniel  Bates- which 
evidence  was  written  out  by  Alexander  R. 
McKee,  Esq.,  clerk  of  Garrard  county,  present 
at  the  trial — are,  on  due  consideration,  unani 
mously  of  opinion  that  the  said  Abner  Baker 
was,  at  the  time  of  the  killing  of  Bates,  and 
for  some  time  before  and  subsequently,  labor 
ing  under  monomania,  in  a  yery  marked  and 
severe  form,  and  as  such  we  recommend  him 
to  the  clemency  of  the  Executive. 

D.  J.  AYRES.M.D. 
JOHN  TODD,  M.D. 
JOS.  WEISIGER,  M.D. 
WM.  PAULING,  M,D. 
JOSEPH  SMITH,  M.D. 

J.  ROLLINGS  WORTH,  M.D. 
R.  W.  DUNLAP,  M.D. 

FRANKFORT,  Aug.  II,  1845. 
We,  the  undersigned,  Physicians  of  Frank 
fort,  after  a  careful  examination  of  the  testi 
mony  in  the  case  of  the  Commonwealth  against 
Dr.  Abner  Baker,  on  the  charge  of  the  murder 
of  Daniel  Bates — of  which  the  said  Baker  now 
stands  convicted  in  the  county  of  Clay — are 
unanimously  of  the  opinion,  that  said  Baker 
previous  to  and  at  the  time  of  the  committa 
of  said  act,  was  laboring  under  mental  de 
rangernefit. 

JOS.  G.  ROBERTS,  M.D. 
CHAS.  G.PHYTHIAN,  M.S> 
LUKE  P.  BLACKBURN,  M.D 
LEWIS  SNEED,  M.D. 
A.  F.  MACURDY,  M.D. 

E.  H.  WATSON,  M.D. 

NICHOLASVILLE,  July  25,  1845. 
Hon.  William  Owsley  : 

Dear  Sir  : — At  the  request  of  a  friend  o 
Mr  Abner  Baker  Sr.,  I  have  examined  the 
testimony  in  the  case  of  Mr.  Abner  Bnker 
The  record  was  submitted  to  me  that  I  raighl 
give  my  opinion  as  to  the  sanity  of  Dr.  Baker 

It  is  due  to  myself  and  the  parties  to  state 
that  from  the  rumors  which  I  had  heard  of  the 
circumstances  attending  the  death  of  Mi- 
Bates,  my  opinion  was  that  it  was  mur 
der  most  foul  ;  and  I  believed  that  the  acquit 
tal  of  Baker  was  the  result  of  effort  and  th< 
influence  of  wealth. 

I,  however,  had  not  gone  through  the  testi 
mony  introduced  by  the  prosecution,  before 
became  perfectly  satisfied  that  Dr.  Baker  wa 
a  madman. 

I  am  confident  that  it  is  impossible  that  an} 

man  can  examine  the  evidence  of  Mr.  Jame 

37 


White,  without  being  satisfied  that  no  man 
ould  speak  to  a  father,  of  his  child  as  he 
poke,  and  give  utterance  to  such  absurd 
iharges  against  his  own  wife,  who  was  sane. 
The  statements  of  all  the  witnesses,  especially 
)r.  H.  Baker,  go  most  conclusively  to  prove 
his  fact,  that  Dr.  A.  Baker  was,  and  is  the 
ubject  of  monomania — a  disease  as  well 
cnown  and  clearly  defined  (though  strange 
irid  unaccountable)  as  fever  or  any  thing 
cnown  to  exist.  In  my  practice,  I  have  met 
vith  cases  as  singular,  but  not  more  perfect 
han  Baker's,  and  I  would  as  soon,  have  thought 
>f  passing  sentence  against  an  infant  or  an 
diot  as  against  Dr.  Baker,  with  evidence  as 
set  forth  in  the  record.' 

I  am,  Sir,  with  great  respoct, 

A.  K.  MARSHALL,  M.D. 

I  have  also  examined  the  testimony  in  the 
case  of  the  Commonwealth  against  Dr.  A. 
Baker,  in  connection  with  Dr.  A.  K.  Marshall, 
of  our  town,  and  fully  concur  in  his  opinion 
0,3  stated  to  you  in  the  foregoing. 

W.  J.  BALLARD,  M.D. 

To  His  Excellency  William  Owsley, 
Governor  of  the  Commonwealth  of  Kentucky: 

The  undersigned,  Attorneys  at  law,  were 
present  (but  not  employed  by  either  party)  at 
the  trial  of  Abner  Baker  for  killing  Daniel 
Bates,  and  heard  all.  or  much  the  greater  part 
of  the  testimony  introduced,  both  on  the  part 
of  the  Commonwealth  and  the  Defendant,  and 
from  the  testimony  so  introduced,  we  were 
fully  convinced  of  his  derangement,  at  the 
time  he  killed  Bates,  and  also  that  he  had  been 
deranged  for  some  time  prior  to  that  act ;  that 
he  has  been  ever  since,  and  is  now,  in  a  state 
of  mental  derangement,  both  upon  the  subject 
of  his  wife's  inconstancy  to  him,  and  of  Dan 
iel  Bates  having  been  too  intimate  with  her, 
and  of  his  (Bates)  contriving  plans  to  have 
the  said  Baker  killed. 

We  further  state,  that  every  witness  who 
testified  to  anything  bearing  upon  the  case, 
disclosed  some  fact  conducing  to  show  that  he 
(Baker)  was  laboring  under  a  state  of  mental 
derangement,  and  we  were  utterly  surprised 
and  astonished  at  hearing  the  jury  had  brought 
in  a  verdict  of  "  guilty,"  contrary  to  the  law 
and  evidence  in  the  case.  In  fact,  we  did 
not  think  that  the  jury  would  hesitate  ten 
minutes  in  agreeing  to  a  verdict  of  "not 
guilty." 

We  therefore  petition  your  Excellency  to  in 
terfere  in  his  behalf,  to'extend  the  Executive 
clemency  to  him  and  release  him  from  the  ver 
dict  of 'the  jury,  and  the  judgment  of  the 


Court. 


Lancaster,  Kv. 


LEWIS  LANDHAM, 
J.  BURDETT, 
L.  F.  DUNLAP, 
P.H.DENTON, 
July  19, 1845. 


LEXINGTON,  August  8th,  1845. 
Gov.  William  Owsley  : 

Dear  Sir : — I  have  been  requested  to  give 
my  vieAvs  as  to  the  effect  of  monomania  upon 


290 


TRIAL  OF  DR.  ABNER  BAKER. 


the  criminality  of  acts  committed  under  its 
influence.  The  principle  laid  down  in  all 
the  books  is,  that  insanity  must  proceed  to 
such  an  extent  as  to  disable  the  person  from 
distinguishing  right  from  wrong,  and  the  de 
fence  must  we  well  made  out.  There  is  cer 
tainly  no  disputing  either  of  the  propositions 
above  stated.  And  I  believe  juries  should  al 
ways  convict  where  the  defence  fails  in  either 
point,  leaving  to  the  Executive  the  discretion 
given  him  by  the  Constitution  of  distinguish 
ing  and  giving  pardon,  where  the  reason  is 
only  partially  wrecked,  and  guilt  palliated, 
but  not  entirely  taken  away. 

In  the  application  of  the  above  principles, 
I  entertain  no  doubt  that  if  a  monomaniac, 
under  the  influence  of  an  insane  delusion  kills 
or  does  any  other  act,  is  not  criminal,  though 
on  other  subjects  he  could  scarcely  distinguish 
between  right  and  wrong.  I  admit  the  case 
of  Billingham  would  seem  to  be,  in  some  mea 
sure,  opposed  to  this  ;  but  in  that  case  the 
law  was  correctly  laid  down,  the  error  was  in 
its  application,  for  Billingham  killed  Percival 
under  an  insane  delusion,  and  believed  in  that 
act  he  was  doing  right,  and  the  chief  error 
was  by  the  jury.  His  conviction  and  execu 
tion  must  be  regarded  rather  as  a  political 
than  a  judicial  action  by  the  Courts  .of  Eng 
land.  It  has  received  the  reprobation  of  emi 
nent  jurists,  and  I  have  read  an  able  and  clear 
view  given  of  it  by  Lord  Brougham,  (I  think) 
but  am  not  able  to  lay  my  hands  on  it  at  pre 
sent.  Practically  the  case  of  Billingham  has 
been  overruled  in  the  strongest  manner  in  the 
trial  and  acquittal  of  the  monomaniac  that  at 
tempted  the  life  of  the  Queen. 

It  seems  to  me  that  it  follows  as  a  mathe 
matical  truth,  that  the  only  inquiry  is,  whe 
ther  the  act  done  was  an  act  of  insanity.  If 
it  was,  it  cannot  be  with  a  "  felonious  intent." 
And  this  renders  it  wholly  immaterial  whe 
ther  the  reason  was  wrecked  generally,  or  only 
on  the  particular  subject  which  produced  the 
act. 

I  know  nothing  of  the  case  for  which  it  is 
desired  that  these  views  should  apply.  But  I 
would  add  that  I  consider  that  there  are  many 
cases  in  which  I  believe  it  would  be  right  that 
the  jury  should  convict,  but  in  which  pardon 
should  be  extended  by  the  Executive.  Where 
a  real  and  well  founded  doubt  exists  in  a  com 
munity,  on  the  subject  of  insanity,  the  execu 
tion  of  such  person  can  produce  no  beneficial 
effect.  His  death  is  apt  to  change  doubts  into 
certainties,  and  it  is  highly  prejudicial  to  all 
future  trials  that  a  general  belief  should  ex 
ist  that  a  man,  innocent  in  law  had  suffered. 
Respectfully,  yours,  &c 
M.  C. 


I  had  occasion  lately  to  examine  the  subject 
upon   which   the  above  opinion  is  expressed, 
and  concur  with  the  views  therein  expressed. 
A.  K.  WOOLLEY. 

I  concur  in  the  above  yiews. 

C.  S.  MOREHEAD. 


I  think  the  above  views  of  M.  C.  Johnson 
so  clear  and  correct  that  no  two  men  would 
differ  in  regard  to  them. 

GEO.  B.  KINKEAD. 

To  His  Excellency,  William  Owsley, 
Governor  of  Kentucky  : 

Your  petitioners  state  they  have  been  ac 
quainted  with  Dr.  Abner  Baker,  who  is  con 
victed  for  killing  Daniel  Bates,  and  who  we 
present  to  your  Excellency  as  an  object  of 
mercy,  and  one  who  we  believe  is  not  subject 
to  the  penalty  of  the  law.  We  state  that  Dr. 
Baker  is  by  nature  a  high  and  lofty  minded 
man,  as  incapable  of  stooping  to  a  low  and 
mean  act  as  any  man  living — his  capacity  and 
qu  ilification  fine — he  promised  to  be  use 
ful  to  himself  and  society — his  prospects 
were  fair  and  promising.  Among  the 
people,  he  was  popular,beloved  and  respected, 
both  as  a  man  and  a  phvsician. 

But  the  Lord  laid  on  him  his  afflicting  hand 
— his  mind  was  impaired  and  exhibited  signs 
of  derangement  which  increased  and  was  de 
veloped  in  the  destruction  of  D.  Bates.  We 
stated  that  previous  to  this  unfortunate  event, 
and  at  the  time,  he  was  under  such  a  state  of 
derangement,  that  he  had  no  control  over  his 
mind — he  did  not  imagine,  just  as  the  notion 
would  flit  across  his  deluded  mind,  and  which 
was  palpably  wrong  was  perfectly  right,  as 
the  killing  of  Mr.  Bates  ;  and  that  individual 
contemplated  his  death,  and  that  combinations 
were  formed  against  him  for  evil — and  that 
his  father  and  mother  and  '.his  best  and  near 
est  friends  were  his  greatest  enemies.  N"o 
reason  or  argument  could  change  his  mind. 
He  has  no  reasoning  mind  on  certain  subjects, 
which  is  fully  presented  in  the  documents  be 
fore  you — we  mean  the  subject  of  his  wife  and 
Bates,  (fee.  Here  it  is  plain  he  believed 
that  which  was  evidently  wrong  in  the  sight 
of  God  and  man,  he  firmly,  under  his  delusion, 
believed  to  be  right.  It  is  then  clear  to  every 
rational  mind  that  said  Baker  did  not  know 
right  from  wrong,  as  to  the  object  of  his  at 
tack,  and  then  not  responsible  for  the  act,  and 
so  innocent  of  the  murder  of  Bates,  it  having 
been  the  effect  of  insane  delusion.  He  was 
evidently  excited  by  Bates'  threats,  as  proved 
by  more  than  one  witness,  and  was  beyond 
doubt,  irresistibly  compelled  under  his  de 
rangement,  and  he  had  no  rational  control 
over  himself  to  prevent  the  deed  at  a  moment 
when,  from  the  threats  of  Bates,  or  the  infor 
mation  of  Cobb  and  Morris,  two  witnesses,  he 
was  excited  in  a  high  degree  and  believed 
that  Bates  would  kill  him  if  he  did  not  pre 
vent  him  by  killing  Bates  first.  We  believe 
that  deranged  persons  are  capable  of  excite 
ment,  anger,  and  revenge.  Several  of  the 
subscribers  have  seen  Dr.  Abner  Baker  from 
time  to  time  since  his  conviction,  and  we  be 
lieve  he  is  still  a  deranged  man,  and  that  lately 
he  has  attempted  his  life.  And  we  further 
believe  it  would  be  murder  to  inflict  the  sen 
tence  of  law  upon  him.  We  further  state  that, 
said  Baker's  deluded  mind  may  be  clearly 
seen  in  this  :  He  believed  that  Judge  Rob- 


TRIAL  OF  DR.  ABNER  BAKER. 


291 


•rtson  and  John  Moore,  two  lawyers  that  ap 
peared  for  him,  came  to  Court  and  designed 
to  have  him  convicted.  He  regards  them,  un 
der  his  delusion  as  his  enemies. 

"We  therefore  beseech  your  excellency  to  re 
consider  the  case  of  said  Baker  and  grant  him 
a  pardon,  which,  we  have  no  doubt,  will  meet 
the  public  approbation. 

THOS.  T.  GARRARD, 
WILLIAM  GARRARD, 
DANIEL  GARRARD, 
J.  H.  GARRARD, 
S.  M.  WILLIAMS, 
W.  H.  YOUNG, 

From  observation  and  testimony,  we  be 
lieve  every  fact  stated  in  the  above  petition, 
to  be  true. 

S.  C.  PEARL, 

HUMPHREY  T.  JACKSON. 

ABRAHAM  BAUGH, 

THOS.  POPE. 

LEXINGTON,  20th  September,  1845. 

My  Dear  Sir  :— I  have  just  received  yours 
of  this  morning,  informing  me  that  the  Go 
vernor  had  authorized  you  to  say,  "  upon  con 
sideration  of  the  petition  presented  to  him  the 
day  before  yesterday  by  Capt.  Baker  and  his 
son  Hervey,  he  is  of  the  opinion  that  he  has 
no  official  authority  to  institute,  or  direct  any 
inquisition  or  legal  inquiry  as  to  the  sanity  or 
insanity  of  Dr.  Abner  Baker,  or  to  order  his 
removal  from  his  present  place  of  confinement 
for  the  purpose  of  any  such  inquisition.  These 
matters,  he  thinks,  belongs  to  the  judiciary, 
and  to  them  must  be  left  the  duty  of  applying 
whatsoever  proceeding  or  remedy  the  law  al 
lows.  The  Governor  farther  says,  he  would  be 
fjlad  to  hear  the  grounds  upon  which  you  sup 
posed  him  authorised  to  institute  such  an  inqui 
sition,  or  to  remove  Dr.  Baker." 

Availing  myself  of  this  invitation  by  the 
Governor,  I  will,  through  you,  as  his  selected 
organ  of  communication  on  this  occasion,  sug 
gest  the  general  considerations  which  induced 
me  to  suppose  that  he  has  legal  authority  to 
do  all  the  petition  alluded  to  requests  him 
to  do. 

1st.  If  a  man,  sentenced  to  death,  be  in 
sane  after  judgment,  the  law  requires  that  he 
should  be  respited  until  he  shall  become  com 
pos  mentis — and  his  execution,  when  insane, 
would  be  wrong  and  inconsistent  with  the 
policy  and  justice  of  the  law. 

2nd.  In  England,  the  Judge  has  power  to 
respite  on  the  ground  of  insanity  whenever 
that  disability  can  be  pleaded  against  enter 
ing  judgment,  because  the  case  is  still  open 
and  under  the  power  of  the  court.  But  here 
in  Kentucky  the  judgment  fixes  the  time  and 
place  of  execution,  and  gives  the  only  war 
rant  for  execution  : — and  consequently,  after 
such  judgment  and  the  final  adjournment  oi 
the  court,  the  judge  who  rendered  the  judg 
ment,  is,  as  to  that  case,  functus  officii,  and 
has  no  more  jurisdiction  over  it  than  any  other 
circuit  judge  of  the  State.  And  it  is  worthy 
of  grave  consideration  whether,  after  the  judi 


ciary  has  thus  exercised  its  judgment  and 
consigned  the  convict  to  the  executive  depart 
ment,  it  can  exert  any  other  power  in  the  case. 
In  some  of  the  States  of  our  Union,  and  in 
New  York  especially,  there  is  statutory  provi 
sion  for  trying  the  question  of  insanity  in 
just  such  a  state  of  case.  But  there  is  none 
such  in  Kentucky.  And  I  apprehend  that 
here  the  only  object  of  an  inquisition  would 
be  to  subserve  the  power  of  respiting  or  par 
doning  by  the  Governor.  The  only  reason 
why  insanity,  after  sentence,  should 'suspend 
execution  ,is  because  the  insensate  is  not  in  a 
proper  condition  for  prosecuting  his  claims  to 
a  pardon. 

3rd.  In  Kentucky,  has  not  the  Governor 
alone  power  to  suspend  execution  after  judg 
ment  and  the  adjournment  of  the  convicting 
court  ?  The  prisoner  is  then  in  his  exclusive 
custody — for  he  is  the  head  of  the  executive 
department,  and  the  jailor  is  but  his  subaltern 
agent  or  minister,  and  is  subject  to  his  super 
vision  and  control.  And  who  but  himself  can 
change  .that  imprisonment,  or  -rescue  from 
the  judgment  as  rendered  ? 

4th.  As  the  Governor  has  the  sole  power  to 
pardon  and  liberate  the  prisoner,  either  abso 
lutely  or  conditionally,  he  surely  must  possess 
all  subordinate  or  subservient  power  compre 
hended  in,  or  subsidiary  to  the  exercise  of  this 
plenary  power.  If  he  can  liberate  him  un 
conditionally,  he  can  certainly  do  so  on  condi 
tion  that  he  be  found  a  lunatic  and  be  placed 
in  the  Asylum;  and  consequently,  as  the  pri 
soner  cannot  be  placed  in  the  Asylum  with 
out  an  inquisition,  the  Governor  can  authorise 
the  inquisition  and  the  prisoner's  removal  so 
far  as  it  maybe  proper — and  if  the  inquisition 
find  the  lunacy,  the  Governor  can  alone  remit 
the  imprisonment  and  punishment  adjudged 
by  the  court,  and  authorise  and  compel  the 
jailor  to  surrender  the  custody  of  him,  and 
deliver  him  to  a  different  custody.  And  this 
he  can  do  under  his  exclusive  power  to  respite 
and  pardon. 

5tth.  Why,  without  the  authorisation  of 
the  Governor,  would  a  judge  hold  an  inquisi 
tion,  when,  even  if  the  prisoner  be  found  a  lu 
natic,  the  judge  cannot  remit  the  judgment  of 
conviction,  nor  substitute  any  other  custody 
than  the  legal  imprisonment  adjudged  against 
him  ?  The  judiciary,  in  the  case  ef  Dr.  Baker, 
has  no  power  now  to  suspend  or  remit  the 
punishment  adjudged  against  him.  The  only 
constitutional  power  is  in  the  Governor.  It 
seems  to  me,  therefore,  that  the  Governor  un 
doubtedly  possesses  and  ought  to  exercise  the 
authority  to  direct  the  inquisition  which  has 
been  called  for  by  the  petition,  as  he  alone 
can  give  the  full  and  proper  legal  benefit  of 
a  finding  of  lunacy,  and  no  one  but  himself  can 
know  what  he  will  do  in  the  event  of  such  a 
finding,  which  can  have  no  beneficial  effect 
unless  he  shall  choose  to  grant  a  respite  or 
pardon,  and  which  finding  may  also  be  de 
sired  by  him  to  enable  him  to  decide  whether 
he  ought  to  grant  a  respite  or  pardon. 

6th.  I  apprehend  that  a  habeas  corpus  from 
a  judge  would  not  be  obeyed  without  the  Go- 


292 


TRIAL  OF  DR.  ABffER  BAKER 


vernor's  endorsement — and  if  lie  have  power 
thus  to  effectuate  it,  he  must  have  power  to 
direct  the  removal  for  the  same  purpose  with 
out  the  judicial  writ,  which,  without  his  con- 
currencey,  would  be  ineffectual.  And  if  a 
formal  writ  shall  be  required,  (though  I  can 
not  imagine  why,)  may  not  the  Governor  say 
to  the  jailor  that,  in  the  event  of  its  being  pre 
sented  to  him,  he  shall  obey  it  ?  And  why, 
and  for  what  end,  or  with  what  hopes,  should 
an  application  be  made  to  a  judge  without  the 
Governor's  official  sanction  and  co-operation  ? 
N"o  judge  now  can  have  jurisdiction  to  hold  an 
inquisition  for  any  other  purpose  than  to  en 
able  the  Governor  to  grant  a  respite  or  a  con 
ditional  pardon  and  change  of  custody.  Ought 
not  the  Governor  then  to  institute  this  inquiry 
— and  can  it  be  either  legally  or  availably 
had  without  his  direction  for  the  purpose  of 
subserving  his  official  action? 

7th.  Having  said  that  there  is  no  statute  of 
Kentucky  providing  for  a  judicial  interven 
tion  in  a  case  of  insanity  after  judgment  of 
conviction,  may  I  not  now  add  that  our  habeas 
corpus  statutes  constructively  deny  the  power 
of  a  judge  to  issue  a  habeas  corpus  in  favor  of 
a  convict  imprisoned  under  a  final  judgment 
for  felony,  and  murder  especially  V  See  act 
of  1797. 

In  such  a  case  there  is  no  revisory  power 
nor  any  authority  to  prevent  execution  else 
where  lodged  by  our  law  than  in  the  Execu 
tive.  And  should  a  Judge  strain  a  point  and 
issue  such  a  writ,  and  hold  an  inquisition 
finding  lunacy,  what  will  he  then  do  with  the 
prisoner  ?  He  cannot  avert  the  sentence  of  the 
taw  by  depositing  the  prisoner  in  an  Asy 
lum — for,  by  putting  him  there,  the  judgment 
is  suspended  or  nullified — and  the  constitu 
tion  concedes  this  power  to  the  Governor  only. 
For  what  purpose  then  will  he  hold  the  inqui 
sition  ?  Certainly  there  can  be  no  other  than 
to  furnish  to  the  Governor  a  new  fact  entitling 
the  prisoner  to  a  suspension  of  the  judgment 
and  a  change  of  custody,  which  the  Go 
vernor  alone  can  order.  And  how  does  the 
Judge  know  that  the  Governor  desires  this,  or 
will  recognise,  or  act  on  it  ?  And  after  the 
z'nquisition,  what  is  he  to  do  with  the  prison 
er  t  And  whence  did  he  derive  authority  to 
take  him  out  of  jail  V  And  suppose  the  pri 
soner  shall  escape.  Who  will  be  responsible  ? 
He  took  him  from  Executive  custody  without 
authority,  and  had  no  such  power  of  safe 
keeping  as  the  Executive  magistracy  had. 
But  if  the  Governor  order  him  to  be  brought 
out  for  inquisition  and  he  escape,  there  can 
be  no  complaint,  because  he  was  still,  as  be 
fore,  in  the  Governor's  custody,  and  might 
have  been  constitutionally  liberated  by  him 
altogether. 

It  seems  to  me,  therefore,  that  the  Governor 
now  has  exclusive  power  in  the  case,  and  I 
cannot  doubt  that  it  is  sufficient  for  every  pur 
pose  of  respite  or  pardon,  absolute  or  condi 
tional.  Having  the  exclusive  power  of  respite 
and  of  pardon,  he  must  have  the  power  to 
employ  all  non-prohibited  means  which  may 
be  necessary  and  proper  for  enabling  him  to 


exercise  this  unqualified  power  under- 
standingly,  justly,  and  effectually.  But,  if  the 
Governor  persist  in  a  different  conclusion,  tee 
must  try  the  Judiciary.  And  in  that  event,  may 
we  expect  an  Executive  order  to.  the  jailor  to 
obei/  the  mandate  of  the  Judge  ?  * 

These,  sir,  are,  very  hastily,  my  general 
views — and  which  I  desire  you  to  submit  to 
the  Governor  in  his  official  capacity.  I  have 
no  other  authorities  than  the  reasons  I  have 
suggested  and  the  probable  and  almost 
certain  and  very  singular  circumstance 
also  that,  while  the  Judiciary  cannot  act  with 
out  executive  authority  or  sanction  in  advance, 
if  the  Governor,  doubting  his  own  power, 
shall  refuse  to  act,  a  man  known  to  be  insane 
may  be  unjustly  hung  to  the  discredit  of  the 
Commonwealth,  to  the  mortification  of  its  just 
citizens,  and  to  the  disparagement  either  of  its 
functionaries  or  its  jurisprudence. 

We  care  not  about  the  form  of  the  inquisi 
tion — whether  it  be  by  the  Governor's  own  in 
spection,  or  by  proof,  or  trial.  But  an  inqui 
sition  we  ask,  and  to  one,  in  some  form,  we 
are,  as  we  humbly  think,  undoubtedly  entitled. 
And  we  are  sure  that  we  cannot  procure  one 
without  Executive  sanction,  and  co-operation 
nor  for  any  other  end  than  Executive  informa 
tion  and  action.  Yours,  <fec., 

G.  ROBERTSON. 

To  Hon.  John  J.  Crittenden. 
[A  true  copy.] 

Sept.  29th,  1845. 

Dear  Governor: — If  you  intend  to  permit 
my  son  to  die,  for  God's  sake  intimate  it  to 
me,  and  relieve  me  from  this  suspense. 

A.  BAKER. 

As  soon  as  it  was  ascertained  that  the  Go 
vernor  had  declined  extending  his^constitu- 
tional  power  to  pardon  Dr.  Baker,  and  that  he 
had  further  declined  issuing  the  writ  of  in 
quiry — alleging  that  this  power  was  vested  in 
the  Judiciary  only — application  was  made  to 
Judge  Buckner  for  that  inquisition.  The  fol 
lowing  letter  will  explain  the  purport  of  this 
petition  and  the  response  of  Judge  Buckner. 
LEXIXGTOX,  Oct.  1st,  1845. 

Dear  Sir  : — Application  has  this  day  been 
tuade  to  me  on  the  petition  of  a  Mi.  Baker,  sr., 
for  a  writ  of  habeas  corpus  in  favor  of  A.  Baker, 
jr.,  now  under  sentence  of  death  by  the  judg 
ment  of  the  Clay  Circuit  Court.  The  object 
of  the  petition  is  to  have  an  inquest  of  lunacy. 
The  effect  of  lunacy  at  the  commission  of  tho 
crime  has  already  been  tried,  but  the  petition 
charges  that  he  then  labored  under  monoma 
nia,  but  that  it  is  now  total  mania. 

I  am  of  the  opinion  that  I  hare  the  power 
to  hold  such  inquest,  and  would  grant  the 
writ,  if  it  would  not  interfere  with  the  execu 
tion  of  the  sentence  of  another  Court.  If  he 
were  now  of  unsound  mind,  it  could  be  of  no 
avail,  unless  yon  should  thereafter  think  proper 
to  interfere.  But  if  you  shall  think  proper  to 

*  Neither  any  such  order  nor  any  answer 
ever  came  from  the  Governor. 


TRIAL  OF  BR,  ABffER  BAKER. 


293 


respite  the  execution  of  the  sentence,  I  will 
grant  the  writ  and  direct  the  inquest  as  a  means 
of  ascertaining  a  fact  to  satisfy  your  mind. 
The  object  of  the  suspension,  at  this  time,  is 
only  to  give  time  to  nold  aa  inquisition. 
Yours,  cfcc. 

R.  A  BUCKNER,  Jr. 
Gov.  Owsley,  Frankfort,  Ky. 

When  the  above  letter  was  presented  to  the 
Governor,  he  observed  that  he  would  consider 
of  it  by  morning,  (Thursday  one  day  preced 
ing  the  execution.)  It  was  represented  to 
him  that  it  would  be  impossible  to  reach 


the  prisoner  in  time  to  suspend  the  execution, 
if  he  delayed  granting  the  respire  until  the 
next  day.  He  then  remarked  he  had  decided 
the  case  and  would  not  take  it  up  again — and 
when  he  was  informed  that  the  friends  of  Dr. 
Baker  had  been  induced  to  believe  that  he  in 
tended  to  grant  a  pardon  or  further  respite, 
from  the  impressions  mado  by  him  ou  Dr.  Ba 
ker's  friends  and  his  own  relatives — and  that 
he  was  awaiting  the  arrival  of  General  Dud 
ley  before  he  could  decide  upon  the  case — the 
Governor  replied  that  he  had  "  never  intended 
pardoning  Dr.  Baker,"  that  he  had  "  no  idea  of 
turning  him  loose  upon  the  community ," 


MR.  ROBERTSON'S  SPEECH- 


The  wreck  of  God's  image  now  before  you,  J 
under  trial  for  murder,  entered  the  threshold 
of  manhood  with  hopeful  prospects  of  a  long, 
useful  and  honorable  life.  Richly  blessed 
with  personal  graces  and  mental  gifts,  he  cast 
his  lot  among  you,  and  commenced  his  pro 
fessional  career,  as  you  all  know,  under  a  clear 
sky,  beaming  with  gilded,  promises.  But  how 
deceitful  often  are  the  brightest  hopes  of  men. 
Already  he,  whose  young  horrizon  was  so  re 
cently  bright  and  promising,  trembles  on  the 
precipice  of  a  yawning  gulf,  under  a  black 
cloud  that  hangs  portentous  over  his  destiny. 
Doomed  to  the  greatest  of  Earthly  calamities 
— an  eclipse  of  mind — and,  as  a  consequence 
of  that  tremendous  misfortune,  doomed  to  be 
the  blind  instrument  of  a  brother's  death — he 
is  now  also  doomed  to  an  ordeal  rare,  if  not 
unexampled,  in  a  laud  of  justice,  liberty,  and 
law. 

The  man  he  killed,  influenced  on  his  death 
bed  by  a  strange  spirit  of  revenge,  bequeathed 
$10,000  to  insure  his  conviction  and  execution, 
promised  freedom  to  a  slave  on  condition  that 
he  would  slay  him,  and,  as  a  legacy  to  his  own 
infant  son,  charged  him  to  see  that  his  victim 
should  certainly  fall  by  the  hand  of  vengeance. 
Although  he  was  tried  and  acquitted  by  an 
examining  Court  on  the  ground  of  insanity, 
and  was  then  sent  by  his  friends  to  a  southern 
climate  for  the  improvement  of  his  health,  yet 
the  Governor  of  Kentucky,  at  the  instance  of 
some  of  the  kindred  of  the  deceased,  issued  a 
proclamation  advertising  him  as  a  fugitive  from 
justice,  and  the  prosecutors  offered  a  high  re 
ward  out  of  this  legacy  of  $10,000  for  his  ap 
prehension.  As  soon  as  his  honorable  father 
saw  that  proclamation,  he  brought  nis  unfor 
tunate  son  to  the  jail  of  your  county,  in  which 
he  has  ever  since  been  most  uncomfortably  im 
prisoned  at  the  peril  of  his  life.  But  here  he 
is,  voluntarily  surrendered  for  trial  in  the 
midst  of  a  high  and  pervading  excitement 
against  him,  produced,  we  know  not  how,  in 
the  county  of  his  numerous,  wealthy,  and  in 
fluential  prosecutors — relatives  of  the  deceased, 
and  one  of  them  the  husband  of  a  sister  of  the 
accused.  And  to  such  an  extent  have  this  ex 
citement  and  prejudice  run  that  it  is  not  possi 
ble  to  be  sure  of  a  sober  and  impartial  trial; 
for  you  know  that  even  each  of  you  avowed  on 
examination,  that  you  had  formed  an  opinion 
as  to  his  guilt,  and  we  all  behold  armed  men 
wherever  we  turn  our  eyes. 

Yet,  confident  that  the  laV  and  the  facts 
ought  to  insure  his  acquittal,  his  friends  deter 
mined  to  hazard  a  trial  even  here  and  now — 


believing  that  no  honest  and  enlightened  jury 
can,  after  a  full  hearing,  feel  authorized  to 
find  him  guilty  of  murder,  as  charged. 

But  the  legacy  of  blood  must  do  its  full 
work — and  as  one  of  its  fruits,  we  behold  the 
appalling  spectacle  of  four  able  counsel  all 
zealously  seeking,  in  the  name  of  the  Com 
monwealth,  the  life  of  the  accused.  Appre 
hensive  that  the  official  organ — though  known 
to  be  faithful  and  competent — might  not  exert 
a  moral  influence  sufficient  to  insure  the  object 
of  the  legacy,  the  prosecutors  have  employed 
the  celebrated  gentleman  of  Madison — not  still 
sure  of  their  victim,  they  also  employed  the 
eloquent  gentleman  of  Knox — and,  "to  make 
assurance  doubly  sure,"  they  have  added  to 
this  formidable  array  the  shrewd  and  dexter 
ous  gentleman  of  Laurel.  Having  already 
the  prepossessions  of  the  county  of  trial,  they 
have  thus  secured,  as  far  as  they  could,  the 
combined  influence  also  of  Madison,  Knbx,  and 
Laurel.  And  you  have  seen  this  four-horse 
team  pulling,  as  for  their  own  lives,  the  heavy 
load  of  this  prosecution,  and,  at  every  up  hill 
step  of  the  hired  three,  you  might  have  heard 
the  whip  of  the  $10,000  crack  over  their 
heads. 

We  do  not  complain  that  the  Commonwealth 
is  represented  by  extra  counsel — nor  do  we 
object  to  the  unusual  number.  But  we  do 
rightfully  complain  that  the  hired  supernume 
raries  have  argued  this  case — not  soberly  and 
solemnly  on  the  law  and  the  testimony — but, 
by  leaving  the  field  of  legitimate  argument, 
and,  by  assumption  and  declaration,  struggling 
to  inflame  your  passions  and  deceive  your 
judgment.  It  is  a  melancholy  truth  that,  in 
some  respects,  they  have  all  argued  as  if  they 
were  speaking  to  earn  contingent  fees  and 
please  their  clients,  instead  of  faithfully  and 
candidly  representing  the  commonwealth. — 
And,  thus  seeing  money  in  one  scale  and  blood 
in  the  other,  we  have  cause  to  fear  that  the 
money  will  outweigh  the  blood,  and  that  our 
cause  may  sink  under  the  weight  of  a  com 
bination  unsurpassed  in  activity  and  wealth. 

The  gentleman  from  Madison,  who  opened 
the  argument,  devoted  at  least  one  hour  to 
the  irrelevant-purpose  of  proving  the  alarming 
prevalence  of  crime  and  immunity,  and  the 
importance  of  convicting  and  hanging  "one  of 
the  ruffle-shirt  gentry,"  and  especially  "a  Doc 
tor  or  a  Lawyer."  Was  he  then  representing 
the  Commonwealth?  Does  she  desire  unjust 
conviction  by  such  appeals?  And  when  the 
law  and  the  facts  require  conviction,  is  it  ever 
necessary  and  proper  for  her  to  make  the 


THE  TRIAL  OF  DR.  ABNER  BAKBR. 


295 


demagogue's  harangue?  The  guilty  should 
be  punished,  and  I  know  that  too  many  have 
escaped.  But  it  is  the  art  of  lawyers,  chiefly, 
and  not  so  much  the  ignorance  and  «ompas- 
sion  of  juries,  that  has  paralyzed  the  criminal 
law.  And  my  friend  from  Madison  must  al 
low  me  to  remind  him  that  no  criminal  advo 
cate  within  his  range  of  practice  has  been  more 
instrumental  than  himself  in  preventing  the 
condign  punishment  of  the  guilty.  And  I  am 
not  sure  that  his  resort,  in  this  instance,  to 
his  accustomed  arts  in  defence  of  criminals, 
may  not  do  for  the  Commonwealth  what  he 
has  so  often  done  against  her — produce  an  un 
just  verdict.  7  am  for  upholding  and  enfor 
cing  the  law.  But  does  not  this  gentleman 
know  that  the  law  is  made  for  the  protection  of 
the  innocent  even  more  than  for  the  punish 
ment  of  the  guilty?  We  too  invoke  the  law — 
and  in  its  name,  and  under  its  panoply,  we  ask 
for  an  acquittal;  for  we  feel  that  nothing  but 
God  or  the  law  can  save  the  accused  from  the 
powers  of  destruction  that  are  combined  against 
him.  It  is  not  mercy  so  much  as  money  that 
has  effected  the  escape  of  criminals,  and  there 
by  encouraged  crime.  And  the  only  danger 
now  is,  that  money  may  produce  the  opposite 
result — the  condemnation  of  a  guiltless  man. 
And  does  the  gentleman,  suddenly  changing 
from  the  advocate  to  the  prosecutor,  expect 
to  restore  the  law  he  has  so  much  helped  to 
paralyze,  by  hanging  an  insane  man?  And 
why  does  he  so  wish?  Why  now  shall  insani 
ty  be  hung?  And  why  has  guilty  sanity  so 
often  escaped  the  gallows  through  the  gentle 
man's  influence?  "  The  love  of  money  is  the  root 
of  all  evil!"  It  is  this,  more  than  anything 
else,  that  saves  the  guilty — and  it  is  this,  too, 
that  the  accused  in  this  case  has  most  to  fear. 
The  same  counsel,  not  being  able  to  meet 
fairly  the  conclusive  testimony  of  Dr.  Richard 
son,  assumed  that  lie  is  himself  rather  insane 
on  the  subjects  of  phrenology  and  mesmerism 
— and  told  you  that  these  "Lexington  Doctors," 
one  of  whom  was  brought  here  "to  enlighten 
and  astonish  ignorant  mountaineers"  could  look 
at  you  and  through  you,  and  feel  your  pulse 
and  your  head,  and  "then  tell  you  all  you  arc, 
and  all  you  think  and  feel."  Is  this  a  grave 
argument  of  our  just  mother,  the  Common 
wealth?  Was  there  any  testimony  which 
could  give  even  a  color  to  these  improper  as 
sertions?  /  know  that  Dr.  Richardson  has 
no  faith  in  mesmerism,  and  but  little  in  phre 
nology.  And,  though  he  is  a  Lexington  Doc 
tor,  I  presume  that  truth  from  his  lips  will  be 
as  true  in  the  mountains  as  in  his  own  city. 
But  he  is  "an  enemy  to  free  government,"  said 
the  gentleman.  And  what  if  he  be?  Does 
this  impair  the  force  of  his  evidence  or  tend  to 
prove  the  guilt  of  the  accused?  I  will  tell  the 
accuser  that  Dr.  Richardson  is  as  devoted  to 
the  free  institutions  of  his  country  as  he  him 
self,  and  was  risking  his  life  in  the  North 
western  army,  in  the  year  1813,  when  we  were 
both  at  home  learning  or  practising  law.  But 


such  a  course  of  argument  as  this  should  be 
answered  in  a  manner  more  light  and  ludicrous; 
and  I  will,  in  that  way,  give  it  and  much  else 
like  it,  the  finishing  blow  by  an  appropriate 
anecdote.  When  the  steam  locomotive  first 
began  to  run  from  Lexington  to  Frankfort,  a 
little  curly-headed  and  horned  animal  with  a 
bobbed  tail,  while  grazing  on  the  poor  lands 
near  the  latter  place,  seeing  a  car  approaching 
him  with  its  accustomed  force  and  velocity, 
and  thinking  that  this  great  "Lexington"  ma 
chine  Avas  no  better  than  himself — though  only 
a  scrub  of  the  Franklin  hills — fixed  himself  in 
the  track  and,  drawing  himself  up  for  battle, 
gave  it  a  triumphant  butt  as  it  approached  him; 
and,  as  might  have  bee,n  expected,  he  was 
thrown  several  rods  and  effectually  "used  up;" 
at  the  sight  of  which  a  venerable  gentleman 
exclaimed,  that  lie  admired  the  animal's  cour 
age,  but  thought  very  badly  of  his  discretion. 
Now,  whoever  has  the  teinerity  to  butt  against 
the  Lexington  Doctor  trad  ridicule  the  facts 
and  the  law  on  which  we  rely,  should  remem 
ber  the  doom  of  the  short-tailed  bull.  On 
this  subject  let  the  counsel  take  this  coup  de 
grace. 

But  the  gentleman  from  Knox,  after  pouring 
on  you  floods  of  eloquence,  endeavored  to 
alarm  you  by  telling  you  that,  like  Hannibal, 
young  Bates  had  made  to  his  deceased  father, 
a  solemn  pledge  to  avenge  his  wrongs — and 
that,  as  Hannibal  had  sworn  that  he  would 
destroy  Home,  this  youth  had  asservated 
that  he  would  kill  the  prisoner  at  the  bar — 
thereby  intimating  that  yon  ought  to  hang  him, 
to  prevent  his  being  shot!  And  does  this,  too, 
come  from  the  mouth  of  the  Commonwealth? 
It  is  not  only  extraneous  but  signally  unlucky. 
Let  it  be  remembered  that,  after  the  battle  of 
Cj&nnce,  Hannibal  was  compelled  to  desert  Italy 
— Scipio  carried  the  icar  into  Africa,  vanquished 
him  at  Zama,  drove  him  to  inglorious  exile 
and  death,  and  destroyed  Carthage — and  that, 
years  afterwards,  (.'aius  Marias  of  Rome,  sat 
a  hopeless  exile,  on  its  melancholy  ruins.  We- 
desire  peace.  We  appeal  to  the  law.  There- 
have  been  Avar  and  bloodshed  enough.  But 
if  the  menaced  crusade  against  the  life  of  the 
accused  shall  be  lawlessly  waged,  then,  too, 
the  AA'ar  may  be  carried  into  Africa,  and  a, 
proud  Carthage,  instead  of  dcA'Oted  Rome,  may 
fall  neA'er  to  rise. 

The  gentleman  from  Laurel  al?o  has  gone 
out  of  the  Avay  to  excite  and  deceive.  He  has 
read  to  you  the  Mosaic  law  on  homicide,  and 
shoAvn  you  that,  by  that  law,  the  manslayer 
could  legally  escape  the  avenger  of  blood 
only  by  fleeing  safely  to  "a  city  of  refuge." 
And  does  he  wish  you  to  understand  that  such 
is  laAV  here?  If  it  be,  the  accused  has  reached 
a  city  of  refuge.  His  country  is  that  city,  and 
you  are  that  country  and  that  refuge?  And  if 
you  Avill  determine  his  doom  from  the  laAv, 
and  the  testimony  alone,  we  feel  that  he 
is  safe,  and  fear  not  the  avenger  of  blood. 


296 


MB.  ROBERTSON'S  SPEECH  OK 


Instead  of  arguing  the  question  of  insanity,  (of  the  truth  of  all  that  the  accused  said  and 
the  same  counsel  has  also  endeavored  to  ridi-  seemed  to  believe  respecting  Bates'  treatment 
cule  the  insane  expression  of  the  prisoner's  coun-  jto  his  wife  and  himself — or  he  was  undoubted- 
tenance,  and  said  that  it  showed  only  the  mark  I  ly  insane  on  that  subject  also;  for,  if  there 
of  Cam.  This  idle  assertion  is  contradicted  J  was  no  ground  for  his  belief  of  them,  there  is 
by  the  unanswerable  facts — and  therefore  these  no  adequate  or  even  rational  motive  for  his  great 
have  been  answered  only  in  this  unauthorized  hostility  to  Bates,  and  his  suspicions  of  his  de- 


manner.     And  in  reference  to  all  these  unusual 
efforts  made  b\  the  three  hired  counsel,  I  must 


signs  on  his  life,  before  his  marriage.     Then, 
not  only  have  you   a  right  to   accredit  them, 


be  permitted  to  warn  them  that,  in  my  opinion,  jbut  in  cliarity  and  justice,  you  ought  to  be- 
if  the  prisoner  shall  be  hung,  their  hands  will  \  lieve  them,  as  there  is  no  proof  of  their  im- 
be  dyed  with  his  blood.  I  possibility  or  even  great  incredibility.  There 

But,  gentlemen,  I  am  sorry  that  I  felt  it  my  \is  no  disproof  of  any  one  of  them. 
duty  thus  to  notice  fragments  of  the  great  mass       Moreover,  on  the  day  of  the  catastrophe  and 


of  extraneous  matter  that  has    been  thrown 


before  the  accused  had  reached  the  fatal  spot, 


into  the  argument  of  this  case  by  the  triumvi-  j  he  was  told  by  several  persons  whom  he  met 
rate  counsel  of  the  prosecutors.  I  know  that  I  on  the  road,  that,  since  he  left  Kentucky, 
all  such  irrelevant  arguments  indicate  the  want  |  Bates  had  declared  that,  if  he  should  ever  re- 
of  those  that  arc  better;  and  therefore  ought  to  I  turn,  he  would  shoot  him  on  first  sight — that 
operate  for  us  rather  than  against  us.  But  j  he  and  his  slaves  carried  guns  for  that  piirpose 
lest  you  might  be  improperly  affected  by  them,  j — and  that  he  was  then  at  his  furnace  on  the 
duty  to  my  client  required  that  1  should  take  i  only  road  the  accused  could  travel  to  Man- 
some  preliminary  notice  of  them.  They  shew  Chester,  the  place  of  his  destination — and  some 

of  those  imformants  urged  him   not   to  pass  the 


the  spirit  of  the  prosecution.     I  will  now  pro 
ceed  to  those  facts  and  to  that  law,  according 
to  which  you  are   sworn  to  decide  this 
and  I  will  not  again  depart  from  them. 

Our  chief  defence  is  insanity — though  we  'cure  a  gun,  so  as  to  have  some  chance  of  de- 
would  not  despair  of  his  acquittal  of  the  charge  I  fence  against  the  guns  of  Bates  and  his  slaves; 
of  murder  on  the  ground  of  aggravated  provo-  !  but  failing  in  this  defensive  object,  he  went 
c;it ion  and  strong  necessity  of  self-defence.  Jon  with  no  other  weapon  than  one  of  the 

The  Commonwealth  herself  has  proved  that  j  smallest  pocket-pistols.      Now   these   simple 


until  night.     Being  resolved,  however, 
case;  jnot  to  leave  the  highway  or  hide  himself  and 
I  steal  along  in  the  dark,  he  endeavored  to  pro- 


the  accused,  antecfd&itly  to  I'm  marriage,  often 
declared  that  Daniel  Bates  had  maltreated  Ids 
own  wife  (the  sister  of  the  accused)  by  lying, 
every  night,  for  nearly  a  year,  on  the  floor  in 
her  bedroom  with  a  negro  wench,  and  fre 
quently  going  to  his  wife's  bed  and  drawing  a 
a  bowie  knife  across  her  throat  and  thrcntning 


to  kill  her — that  she  invoked 


(her  said 


brother's)  protection,  and  entreated  him  to 
remain  at  her  house  to  save  her  life — that 
Bates,  understanding  this,  became,  therefore, 
very  hostile  to  him,  had  conspired  with  his 
slaves  to  take  his  life,  and  had,  in  fact,  attempt 
ed  his  assassination.  And  it  appears  that,  on 
one  occasion,  the  accused  when  in  the  town  of 
Manchester,  received  a  note  from  said  sister 
warning  him  not  to  return  to  their  house  that 
evening,  because,  as  she  wrote,  her  husband 
was  prepared  with  guns  to  shoot  him  from  an 
upper  room  as  he  approached  the  house.  The 
Commonwealth  having  introduced  these  facts, 
they  are  legitimate  evidence,  which  you  have 
both  a  legal  and  moral  right  to  believe.  If 
they  be  false,  the  prisoner's  belief  in  them  is 
evidence  of  his  insanity;  and  if  they  be  true, 
they  must  operate  powerfully  in  his  favor. 
The  fact  that  he  was  undoubtedly  insane,  ,;/- 
terwards,  as  to  his  own  wife  and  the  imputed 
connexion  of  Bates  and  others  with  her,  can 
not  destroy  the  credibility  of  these  facts  as  to 
Bates'  conduct  to  bis  own  wife  and  his  deter 
mination  to  assassinate  the  accused;  for  a  per 
son  insane  on  one  subject  may  knov/  the  truth 
on  another.  Besides,  there  is  intrinsic  evidence 


and  undeniable  facts,  forbid  the  presumption 
that  the  accused,  before  lie  heard  them,  inten 
ded  (if  he  then  were,  sane)  to  shoot  Bates  when 
and  where  he  did — for,  as  a  rational  man,  lie 
could  not  have  hoped  that  he  could  be  able, 
alono,  as  he  was,  to  succeed  in  killing  him  at 
the  furnace  with  a  small  pistol  and  at  a  dis 
tance  of  eighteen  yards.  But  as  a  sane  man, 
hearing  what  he  had,  he  must  have  apprehen 
ded  that,  in  passing  the  furnace,  Bates  must 
see  him  before  he  could  escape  the  range  of 
his  gun,  and,  so  seeing,  would  shoot  him,  un 
less  he  could,  on  a  forlorn  hope,  accidentally 
shoot  Bates  first  with  his  pistol,  and  thus  ;;o.s- 
sibhj  save  his  own  life.  If  he  were  rational, 
had  he  not  abundant  cause  for  such  apprehen 
sion? — and  did  he  not  thus  reason,  think,  and 
act  to  save  himself  from  destruction?  If  so, 
the  law,  read  on  the  other  side,  acquits  him. 
Was  he  guilty  of  cold-blooded  murder?  Who 
could  hang  him  on  such  facts? 

But  the  fact  that  the  licensed  incurred  so  much 
unnecessary  peril,  and  acted  with  so  much  temer 
ity  is  strong  ei'idence  of  his  insanity.  And  it  is 
not  only  probable,  but  almost  certain,  that,  had 
he  been  perfectly  rational  and  self-poised,  he 
would  not  have  passed  the  furnace  as  and 
when  he  did,  or  that  he  would  not  have 
phot  Bates  then,  if  ever — although  we  main 
tain  that  he  had  a  ight  to  pass  the  highway  in 
daylight,  and  to  defend  himself.  Upon  the 
facts  as  proved,  is  not  this  case  one  of  justifi 
cation  or  of  very  strong  mitigation,  even  if 
the  prisoner  had  been  as  sane  as  you?  But 


THE  TBIAL  OF  DR,  ABNEB  BAKEE. 


he  was  insane,  and  this  we  will  now  endeavo 
to  prove. 

Both  the  mind  and  body  of  man  are,  in  th 
ultimate  sense,  incomprehensible.  We  know 
also  that  the  physical  element  of  our  nature 
material  and  mortal,  and  we  believe  that  tha 
which  is  rational  and  moral  is  immaterial  am 
immortal.  And  consequently,  man  is  the  sub 
ject  of  two  distinct  sciences — physiology,  o 
the  phenomena  of  animal  life — and  psycholo 
gy,  or  the  phenomena  of  the  spirit  or  soul 
Vitality,  whether  vegetable  or  animal,  we  can 
not  understand.  The  material  organization 
which  produces  and  sustains  physical  life,  or  i 
produced  and  sustained  by  it,  we  may  wel 
comprehend.  But  being  so  constituted  as  no 
to  be  able  to  understand  any  ultimate  truth 
element,  or  principle,  but  only  their  pheuomi 
iial  developments  or  results,  we  can  know  n< 
more  of  the  principle  of  life  than  of  that  o 
gravitation  or  electricity.  We  do,  however 
know  that  animal  life  depends  on  physica 
health — and  that  derangement  of  the  body 
whether  organic  or  functional,  is  unsound- 
ness  or  disease.  So  also  we  all  know  tha 
life,  even  of  the  lowest  grade  in  the  scale 
of  animal  existence,  feels,  perceives,  remem 
bers,  and  is  self-conscious;  and  consequently 
it  is  not  easy  to  discriminate  the  Essential  dif 
ference,  except  in  degree,  between  the  mind  o 
a  man  and  that  which  we  may  denominate  the 
mind  of  a  horse.  The  distinctive  difference 
as  generally  recognized,  is  that  lAtween  reason 
and  instinct.  The  beaver,  the  bee,  and  even 
the  caterpillar,  and  every  living  creature,  pos 
sesses  the  faculty  of  adapting  the  means  of  ex 
istence  and  enjoyment  to  the  ends  of  that  ex 
istence  and  enjoyment.  The  silk- worm  knows, 
and  finds,  and  feeds  on,  the  mulberry  leaf,  and 
the  calf  and  the  child  alike  know,  and  find, 
and  suck,  as  soon  as  horn,  their  mother's  pap. 
This  adaptive  and  conservative  power,  com 
mon  to  men  and  brutes,  may  be  called  the  un 
derstanding;  and  the  health  and  perfection  of 
this  depend  necessarily  on  the  soundness  and 
perfection  of  the  physical  organism.  But 
man  possesses  a  higher  faculty — a  power  both 
moral  and  intellectual — a  capacity  to  know  all 
his  moral  relations  and  obligations,  and  to  as 
certain,  by  analysis  or  induction,  abstract 
truth,  mathematical  truth,  ultimate  truth.  It 
is  this  that  ennobles  his  nature  and  elevates 
him  above  all  other  animated  beings.  This 
ennobling  attribute  we  may,  for  the  purpose 
of  contradistinction,  call  reason.  Many  en 
lightened  minds  believe  that  the  understanding 
or  instinct  of  sound  animal  life  is  the  offspring 
of  organic  matter,  and  is,  therefore,  material 
and  perishable;  and  that  the  reason,  peculiar 
to  man,  is  alone  immaterial,  and  is,  of  course, 
indivisible  and  immortal. 

But  it  is  not  necessary  here  either  to  detain 
or  confuse  you  by  speculative  reasonings  on 
metaphysics,  or  by  elaborated  theories  either 
phrenological,  physiological,  or  psychological; 
every  person  knows  that  the  mind  of  man — , 
38 


understanding,  reason,   and  all — as  long  as 
that  mind  co-exists  Trlth  the  body,  is  affected 
by  the  condition  of  the  body;  the  theory  of 
dreams,  and  the  influence  of  sickness,  of  infancy 
and  of  old  age,  on  the  mind,  are  alone  sufficient 
to  prove  that  reason  itself,  however  ethereal 
and  pure,  is  dependent  on  the  perfection  and 
soundness  of  the  physical  organs,  through  the 
instrumentality  of  which  it  acts  and  is  acted 
on  in  the  entire  drama  of  earthly  existence. 
All  that  is  external  is  communicated  to  the 
mind  by  the  material  organs  of  sense.     These 
are  the  heralds  of  the  mind;  and  we  are  10 
constituted  as  not  to  be  able  to   discredit  the 
testimony  of  our  senses.     Consequently,  sen 
sible  facts  are,  and  must  be,  as  much  accredi 
ted  as  intuitive  or  self-evident  truths; — and, 
when   the  mind   reasons  or  acts  from  these 
premises,  its  deductions  or  its  acts  are  inevita 
bly  wrong  whenever  the  premises  are  wrong. 
The  brain,  which  is  the  centre  of  the  nervous 
system,  is  the  seat  and  throne  of  the  mind. 
If  the  reason  be  immaterial  and  immortal,  it 
cannot  be  unsound;  but  still,  as  it  acts  through 
the  ministry  of  the  brain,  it  must  be  either  ob 
scured,   eclipsed,  or    dethroned  by  any  un- 
soundness   or  disorganization  of  the  brain. — 
Whenever  the  brain  is  unsound  it  will,  to  some 
extent,  present  to  the  mind,  false  and  delusire 
images,  which  the  reason  necessarily  believes 
to  be  true,  and  of  the  falsehood  of  which  no 
proof  or  argument  can  convince  it — because  it 
nust  believe  that  which  the  senses  communi 
cate.     When  any  organ  fails   to  perform  its 
proper  function,  it  is  said  to  be  unsound;  and, 
onsequently,   when  physical  unsoundness  is 
the  cause  of  false  sensations,  images,  or  im 
pressions,  which  delude  the  reason  or  pervert 
ts  action,  the  mind,  dependant  as  it  is,  on  the 
jody,  is,  to  the  extent  of  tl^e  delusion,  said  to 
3G — and  certainly,  for  all  practical  purposes, 
nust  be  admitted  to  be— unsound.     And  this 
s  intellectual  insanity.     It  proceeds  necessa 
rily  from  physical  disease  or  derangement — 
and  is,  therefore,  nothing  more  or  less  than  the 
morbid  imagination  of  a  fact  which  does  not 
sxist — for  the   supposed   existence  of  which 
here  is  no  evidence  that  could  possibly  oper- 
itc  on  a   sound  mind — and  of  the  non-exis- 
ence   of  which  no  proof  can  convince  the 
eason.     If,  for  example,  the  brain  or  organ  of 
Tision  be  so  diseased  as  to  present  to  the  mind 
in  object  as  red,  which,  in  truth,  is  green,  or 
inprint  on  the  retina  images  of  objects  which 
Lo  not  exist,  the  mind  is  inevitably  deceived, 
ind,  reasoning  correctly  from  the  facts  and 
)remises,  impels   erroneous  belief  and  wrong 
,ction.     And  thus,  while  the  reason  is  sound 
,nd   the  reasoning  correct,  the  conclusion  is 
also,  because  the  foundation  is  deceptive — the 
ery  source  of  thought  impure — the  premises 
maginary  and  not  re.al.     And  not  only  is  the 
ource  of  the  delusi  on  physical,  but  as  long 
the   morbid   cause  exists,  it  will  be  im- 
ossible  to  undeceive  l;he  mind  because  what  we 
jel,  or  see,  or  hear,  mo  extrinsic  argument  or 


298 


MR.  ROBERTSON'S  SPEECH  ON 


proof  can  convince  us  that  we  do  not  feel,  nor 
ice,  nor  hear.     And  we  must  reason  and  act 
as  if  what  thus  only  seems  to  us,  bo,  as  it  ap 
pears  to  us  to  be,  undoubtedly  true.     If,  when 
your  wife  stands  before  you,  a  morbid  condi 
tion  of  the  brain,  superinduced  by  some  moral 
or  physical  cause,  imprint  on  your  mind  the 
•vivid  impression  of  a  tigress,  a  fiend,  or  a  de 
mon,  no  argument  could  convince  you  that  it 
is  your  wife  you  behold,  nor  prevent  you  from 
acting  as  you  would  if  indeed  the  object  were 
what  it  seems  to  you  to  be.     Your  reason, 
however  clear  and  true,  drives  you  neverthe 
less  to  false  conclusions  and  erroneous  conduct, 
because,  assuming  false  premises  to  be  true,  it 
makes  correct  deductions  from  them;  and  the 
delusion  is  not  in  the  faculty  or  process  of 
reasoning,  but  in   the  imagination  of  a  false 
fact,  the  necessary  offspring  of  an  unsound 
condition  of  the  sensorium.     These  delusive 
images,  all  produced  by  some  physical  de 
rangement,  are  either  illusions  of  the  senses  as 
to  external  objects,  or  hallucinations  which 
arise  from  the  internal  feelings  or  emotions  of 
a  distempered  body.     Thus  from  our  own  ob 
servation,  as  well  as  authentic  books,  we  know 
that,  while  the  subject  of  delirium  tremens  im 
agines  that  he  sees  furies,  hobgoblins,  ghosts, 
and  demons — another  victim  of  delusion  feels 
that  his  legs  nre  glass,  or,  though  a  male,  that 
he  is  in  a  family  way — another  that  he  sees  a 
robber  escape  from  his  room  through  a  key 
hole — another  that  he  saw  a  stranger  to  his 
bed  defile  it  in  the  illicit  embraces  of  his  faith 
ful  and  affectionate  wife — and  another  imag 
ines  conspiracies  to  ruin  him,  and  plots  to  as 
sassinate  him  by  his  nearest  and  best  friends — 
another  believes  that  he  is  the  savior  of  the 
world — another,  like  Hadfield,  that  his  own 
destruction  is    a    necessory  offering   to   the 
peace  and  happiness   of    mankind — another, 
like  the  great    reformer,  Luther,  imagining 
that  he  is  beset  by  the  devil  incarnate,  there 
fore  throws  his  inkstand  at  his  black  majesty 
and  thus  drives  him  from  his  presence — and 
another  yet,  feels  like  the  great  Paschal,  the 
author  of  the  famous  provincial  letters,  who, 
while  elaborating  a  beautiful  solution  of  the 
cycloid  curve,  had  himself  tied  in  his  arm 
chair,  lest  he  might  fall  into   a  deep  abyss, 
which  he  imagined  he  saw  yawning  beneath 
his  feet.     Such  illusions  of  the  senses  and  hal 
lucinations  of  the  internal  feelings  arc  almost 
infinite  in  kind,  as  well  as  in  degree.     And, 
whenever  they  exist,  their  delusive  influence 
on  the  reason  and  the  conduct  of  their  victim 
within  the  sphere  of  their  operation,  is  as  ir 
resistible  as  it  is  cert.ain.     In  each  of  these 
instances  the  delusion  iresults  from  partial  ex 
citement  or  derangement  of  the  brain,  and  in 
each  there  is,  at  least,  particular  insanity  o 
mind,  or  monomania,    which  is  insanity  on 
some  one  subject  only,  and  which,  as  to  tha 
subject  and  every  tiling  connected  with  it 
may  be  as  entire  and  incapacitating  as  univer 
•al  ixuanitj  or  a  total  eclipse  of  the  mini 


would  be  as  to  all  subjects.  Insanity  of  mind, 
ike  that  of  the  body,  may  be  partial  either  in 
he  extent  of  its  prevalence  or  in  its  degree  of 
ntensity.  And  although  the  Court  has  inti 
mated  and  the  counsel  engaged  for  the  Com 
monwealth  has  said  that  there  is  no  such  thing 
as  monomania,  I  am  prepared  to  prove  it  by 
argument  and  an  appeal  to  observation,  and  to 
how  also,  that  there  is  not  a  treatise  extant 
>n  insanity,  or  on  medical  jurisprudence,  which 
loes  not  recognize  and  define  it.  I  know  that 
he  vulgar  notion  of  insanity  supposes  fury 
and  total  deprivation  of  reason,  and  I  know, 
oo,  that  it  is  not  easy  to  convince  the  popular 
nind  that  a  person  is  insane  who  can  reason 
well  on  most  subjects.  But  both  science  and 
aw  recognize  particular  insanity  while  the 
ricthn  of  it  may  be  apparently  sane  and  ra- 
ional  on  all  other  subjects  than  that  in  re 
spect  to  which  there  is  insane  delusion.  And 
;his  mental  derangement  which  is  partial  in 
;he  extent  of  its  sphere  is,  in  its  various  kinds, 
;he  most  prevalent  form  of  insanity,  intellectu 
al  or  moral.  It  fills  the  lunatic  asylums — 
and  there  is  not  one  of  them  in  which  a  ma- 
ority  of  the  patients  do  not  belong  to  that 
class,  in  one  form  or  another.  It  is  no  new 
thing,  therefore,  and  I  am  surprised  to  hear 
any  who  profess  a  knowledge  of  jurisprudence 
peak  of  it  in  a  spirit  of  incredulity  and  ridi 
cule. 

A  few  quotations  will  impregnably  establish 
all  we  have  said  or  shall  ask  you  to  believe  on 
this  interesting  subject.  Esquirol  was  super- 
ntcndant,  for  40  years,  of  the  lunatic  asylum, 
at  Charinton  in  France.  He  was  an  eminent 
medical  philosopher — devoted  extraordinary 
attention  to  mental  unsoundness  in  all  its  va 
rious  forms — and  his  elaborate  and  learned 
treatise  on  insanity  is,  therefore,  not  only  en 
titled  intrinsically  to  unusual  respect,  but  is 
referred  to  as  a  standard  authority  by  medical 
and  legal  men.  Kay's  "Medical  Jurisprudence" 
is  also  entitled  to  great  respect — because  it  is 
an  American  production  of  extraordinary 
ability,  and  is  devoted  altogether  to  the  single 
subject  of  the  medico-legal  character  and  ef 
fects  of  insanity.  On  these  two  books,  there 
fore,  I  shall  chiefly  draw. 

And  here  let  me  premise  that  modern  wri 
ters  on  insanity,  and  even  many  jurists,  recog 
nize  a  morbid  derangement  of  the  moral  fac 
ulties  as  distinct  from  that  of  the  intellectual. 
How  far  any  such  merely  moral  insanity  may 
exist  without  some  intellectual  derangement 
also,  I  do  not  pretend  to  know.  But  I 
do  not  doubt  that,  as  our  moral  and  in 
tellectual  natures  arc  iudissolubly  associated 
and  intertwined,  moral  derangement  is  the 
necessary  consequence  of  intellectual  insanity, 
and  is  co-extensive  with  it.  For  example, 
when  the  mind  of  Hadfield,  in  consequence  of 
some  morbid  derangement  of  his  brain,  labored 
under  the  insane  delusion  that  he  must  offer 
himself  a  sacrifice  to  the  welfare  of  his  race, 
and,  being  opposed  to  suicide,  he  therefore  de- 


THB  TBIAL  OF  DR.  ABNER  BAKER. 


299 


termined  to  assassinate  his  sorereign,  George 
III.  as  the  certain  precursor  of  hid  own  execution 
for  murder  and  treason,  I  doubt  not  that  his 
moral  nature  was  also  so  far  deranged  as  to  in 
duce  him  to  believe  that,  though  murder  was  a 
crime,  yet,  in  that  particular  case,  he  would  be 
guilty  of  no  violation  of  the  law  of  God  or  of  man, 
or  the  delusion  must  have  been  so  overwhelming 
as  to  have  destroyed  all  moral  resistance.  And 
such  was  the  argument  of  his  counsel  and  must 
have  been  the  opinion  of  the  jury  who  acquit 
ted  him.  How  far  moral  insanity,  if  there  be 
such  a  thing  alone — such  as — pyromania,  or  an 
irresistible  passion  for  incendiarism — or  eroto 
mania,  or  an  insane  propensity  for  sexual  in 
tercourse — or  kleptomania,  or  an  overwhelming 
temptation  to  steal — should  exculpate  its  vic 
tim,  I  am  not  prepared  to  say:  That  it  should 
•xcuse  a  criminal  act  in  any  case,  without  any 
proof  or  presumption  of  intellectual  delusion 
nlso,  I  cannot  venture  to  assert.  But  I  do 
maintain  that,  whenever  there  is  any  such 
moral  insanity,  it  is  either  the  parent  or  the 
offspring  of  an  associate  intellectual  insanity 
also.  Mental  unsoundness  is,  in  my  judgment, 
a  two-headed  monster — feeding  at  the  same 
time  on  the  intellectual  and  moral  man. 

Esquirol,  (p.  21,)  defines  mental  insanity  to 
be — "a  cerebral  affection,  ordinarily  chronic, 
and  without  fever — characterized  by  disorders 
of  sensibility,  understanding,  intelligence,  and 
will. 

On  the  same  page  he  makes  the  following 
quotations  from  Conolly: — "Insanity  is  the  im 
pairment  of  one  or  more  of  the  faculties  of  the 
mind,  accompanied  with  or  inducing  a  defect 
of  the  comparing  faculties" — and  from  Prich- 
ard  the  following:  "Insanity  is  a  chronic  dis 
ease  manifested  by  deviations  from  the  healthy 
and  natural  state  of  the  mind,  such  deviations 
consisting  either  in  a  moral  perversion  or  a 
disorder  of  the  feelings,  affections,  and  habits 
of  the  individual,  or  in  intellectual  derange 
ment,  which  last  is  sometimes  partial,  namely, 
in  monomania,  affecting  the  understanding 
only  in  particular  modes  of  thought;  or  gen 
eral  and  accompanied  with  excitement,  viz:  in 
mania  or  raving  madness" — and  then  Esquirol 
himself  concludes  as  follows:  "In  general  it  is 
regarded  as  a  disorder  of  the  system  by  which 
the  sound  and  healthy  exercise  of  the  mental 
faculties  is  impeded  or  disturbed.  That  every 
case  of  mental  derangement,  from  the  first 
moment  of  its  existence,  can  be  perceived,  and 
referred  with  accuracy  and  precision  to 
one  or  another  of  these  definitions,  just  as  in 
science  every  fact  may  be  referred  back  to  its 
principle,  is  not,  by  those  at  all  conversant 
with  the  subject,  supposed  to  be  in  all,  or  per 
haps  in  any  case,  possible.  Who  can  tell 
when  health  ends  and  disease  begins?  When 
disease  is  found  to  have  shed  its  blighting  in 
fluence  over  the  system,  is  it  possible,  after 
establishing  this  fact,  to  decide  what  amount 
or  kind  is  necessary  to  occasion  aberration 
of  mind,  and  when  this  amount  and  quality  is 


developed?  When  developed,  does  it,  at  once, 
manifest  its  baleful  influence  upon  the  brain, 
by  producing  insanity,  or  does  it  rather  brood 
over  the  delicate  organ  of  the  mind  and  grad 
ually  fulfil  its  dread  commission?  When  again 
the  mind  begins  to  totter  and  reason  to  sit  in 
securely  upon  her  throne,  do  the  friends  and 
acquaintances  of  the  unhappy  sufferer  recog 
nize  these  first  monitions?  Or  do  they  not 
rather  behold — if  indeed  they  observe  any 
thing — a  simple  change  of  habit,  slightly  per 
verted  moral  feelings,  or  trifling  eccentricities 
of  character. 

"Now  it  is  conceived  to  be  quite  possible, 
not  to  say  probable,  that  even  during  this  early 
stage  of  insanity,  before  the  friends  or  imme 
diate  associates  of  the  patient  are  aware  of 
its  existence,  or  before  it  becomes  developed 
to  a  degree  that  brings  it  clearly  within  the 
limits  of  any  of  the  above  definitions,  that  a 
source  of  excitement,  fear,  apprehension,  or 
mental  disturbance  of  some  sort,  shall  so  op 
erate  upon  the  mind,  through  the  medium  of 
ts  deceased  organ,  the  brain,  as  to  lead  the 
)erson  so  afflicted,  now  to  the  commission  of 
iuicide,  now  to  homicide,  or  other  acts  of  a 
grossly  immoral  and  highly  criminal  character. 
Sxperience  also  justifies  the  belief  that  these 
results  may  follow  in  the  train  of  excitement 
occurring  from  ordinary  intercourse  with  soci 
ety,  and  equally  from  the  perverted  thoughts 
and  emotions  of  the  individual — thoughts  and 
emotions,  too,  which  he  may  never  have  ex 
pressed,  or  merely  hinted  at  in  conversation 
,vith  his  friends." 

Ray  (p  139)  says: — "Insanity  observes  the 
same  pathological  laws  as  other  diseases" — "it 
arises  from  a  morbid  affection  of  organic  matter, 
and  is  just  as  much,  and  no  more,  an  event  of 
special  Providence  as  other  diseases" — "it 
follows  the  same  course  of  incubation,  devel 
opment,  and  termination  in  cure  or  death,  as 
other  diseases — sometimes  lying  dormant  for 
months  and  even  years,  obscure  to  others,  and 
perhaps  unexpected  by  the  patient  himself — 
at  others  suddenly  breaking  out  with  no  pre 
monition  of  its  approach" — "just  as  consump 
tion,  for  instance,  sometimes  begins  its  ravages 
so  slowly  and  insiduously  as  to  be  perceptible 
only  to  the  most  practical  observer  for  years 
together,  while,  in  another  class  of  patients, 
it  proceeds  from  the  beginning  with  a  progress 
as  rapid  as  it  is  painfully  manifest.  But  its 
presence  no  one  thinks  of  denying  in  the  former 
case,  merely  because  its  victim  enjoys  a  certain 
degree  of  health  and  activity,  though  it  would 
be  no  greater  error  than  to  deny  the  existence 
of  insanity  while  the  operations  of  Jhe  mind 
are  not  so  deeply  disturbed  as  to  be  perceptible 
to  the  casual  observer." 

On  page  142  the  same  author  says:  "Mad 
ness  is  not  indicated  so  much  by  any  particu 
lar  extravagance  of  thought  or  feeling  as  by  a 
well  marked  change  of  character  or  departure 
from  the  ordinary  habits  of  thinking,  feeling, 
and  acting,  without  any  adequate  external 


300 


MR.  ROBERTSON'S  SPEBCH  ON 


cause."  And  on  p.  (?)  "It  is  the  prolonged 
departure,  without  any  adequate  external 
cause,  from  the  state  of  feeling  and  modes  of 
thinking  usual  to  the  individual  when  in  health, 
that  is  the  true  feature  of  disorder  in  mind." 

Speaking  of  some  of  the  characteristics 
of  insanity,  Esquirol  says: — "The  insane  often 
entertain  an  aversion,  towards  persons  who 
were  previously  dear  to  them.  They  insult, 
misuse,  and  fly  from  them.  It  is  a  result, 
however,  of  their  distrust,  jealousy,  and  fear," 
(p  26.)  "The  insane  man  becomes  timid  and 
suspicious.  He  fears  every  one  that  he  ap 
proaches,  and  his  suspicions  extend  to  those 
who  were  most  dear  to  him.  The  conviction 
that  every  one  is  endcavering  to  torment  and 
slander  him,  to  render  him  miserable,  and  to 
ruin  him,  in  body  and  estate,  puts  the  finishing 
stroke  to  his  moral  perversion,  (p  74.)  "We 
would  remark  that  the  insane  conceive  a  dis 
like  and  aversion  to  certain  individuals,  with 
out  any  motive,  and  nothing  induces  them  to 
change  their  views.  The  object  of  this  hatred 
is  usually  the  person  who,  before  their  illness, 
enjoyed  their  love."  (p  75.)  "Thus  a  mother 
believes  she  is  abandoned  by  her  husband,  and 
desires  to  slay  her  children  to  save  them  from 
a  like  misfortune.  A  vine  dresser  slays  his 
children  in  order  to  send  them  to  Heaven. 
A  lady  gets  the  idea  that  her  husband  wishes 
to  shoot  her,  escapes  from  her  chateau,  and 
throws  herself  into  a  well,"  (p  208.)  "Mrs.  A. 
entertains  the  belief  that  men  enter  her  chamber 
during  the  night;  on  being  shown  that  this  is 
impossible,  she  replies  they  pass  through  the 
lock."  (p  23.)  On  page  2*14,  he  says:  "Dis 
appointed  affection,  jealousy,  fear,  &c., 
are  the  passions  which  produce  the  greatest 
number  of  lypemaniacs,  (that  is,  melancholy 
monomaniacs,)  particularly  in  youth." 

Jealousy,  as  we  might,  from  its  force  and 
character,  presume,  is  more  frequently,  than 
other  passions,  the  cause  or  consequence  of 
partial  insanity.  For  illustration,  we  will 
quote  from  Esquirol  some  cases  of  that  kind  in 
the  asylum  at  Charinton:  M.  P.,  who  was  an 
officer  under  Napoleon  and  an  affectionate 
husband,  became  a  monomaniac  in  consequence 
chiefly  of  the  downfall  of  his  leader;  and,  after 
the  last  abdication,  "takes  up  n  frightful  aver 
sion  to  his  wife  and  her  family,  who  were  pre 
viously  the  objects  of  his  strongest  regard. 
Nothing  removes  his  dislike.  He  deserts  his 
adopted  family."  "I  have  often  spoke  to  him 
of  his  wife  and  family,  in  order  to  recall  his 
former  affection.  They  wish,  says  he,  to  deny 
the  faith,;  and  they  are  enemies  of  God  and  I 
renounce  them,  (p  96.)  M.  D.,  40  years  old 
and  after  he  had  been  sometime  in  the  asylum 
"believes  he  sees  a  patient  of  the  house  violate 
his  wife.  In  a  furious  passion  he  throws  him 
self  upon  the  object  of  his  wrath,  and  injures 
him  most  seriously,"  (p  103.) 

M.,  at  the  age  of  27,  was  married  to  a  beau 
tiful  woman,  both  amiable  and  wealthy.  « 'He , 


is  jealous" — "a  change  in  his  character  is  per 
ceptible.  He  is  quarrelsome,  too  exacting, 
overbearing,  uneasy,  restless,  and  unjust  to 
wards  his  relatives."  "He  conceived  an  opin 
ion  that  the  food  at  the  eating-house  at  which 
he  was  accustomed  to  dine  had  been  poisoned. 
He  indulged  in  violent  fits  of  passion  against 
his  father-in-law,  who  lavished  upon  him 
every  attention — he  quarrelled  with  his  wife, 
notwithstanding  the  affection  she  entertained 
for  him.  He  visits  the  houses  of  his  acquaint 
ances,  complaining  that  he  is  poisoned  in  the 
family  of  his  father-in-law,  and  accuses  his 
wife  of  exercising  nn  undue  influence  over 
him."  "His  physiognomy  is  changeful,  hi? 
eyes  red  and  projecting,  and  his  step  haughty. 
He  is  polite  toward  all,  familiar  with  none.*" 
"I  cannot  close  this  account  without  remarking 
that,  from  being  a  hypochondriac  at  first,  then 
a  lypemaniac  fearing  poison,  he  became  a 
monomaniac,"  (p  324-'25.) 

Esquirol  makes  the  following  classification 
of  the  various  kinds  of  insanity: 

1.  Lypcmania. — Delirium  with  respect  to 
one  or  a  small  number  of  objects,  with  pre 
dominance  of  a  sorrowful  and  depressing 
passion. 

"'2.  Monomania,  in  which  the  delirium  is 
limited  to  one  or  a  small  number  of  objects, 
with  excitement  and  predominance  of  a  gay 
and  expansive  passion 

'  3.  Mania,  in  which  the  delirium  extends 
to  'all  kinds  of  objects,  and  is  accompanied 
by  excitement. 

4  Dementia,  in  which  the  insensate  utter 
folly,  because  the  organs  of  thought  have  lost 
their  energy  and  the  strength  requisite  to 
fulfil  their  functions. 

'.  .Imbecility  or  Idiocy,  in  which  the  con 
formation  of  the  organs  has  never  been  such 
that  those  who  are  thus  afflicted  could  reason 
correctly." 

Perhaps  a  different  and  more  comprehensive 
nomenclature,  leaving  out  lypemania,  and  in 
cluding  both  types  of  particular  insanity  un 
der  the  title  of  monomania.,  would  be  more 
scientific,  as  well  as  simple  and  intelligible  . 
And  we  shall  so  treat  the  subject. 

"  Monomania  and  lypemania  are  chronic  cer 
ebral  affections  unattended  by  fever  and  char 
acterised  by  a  partial  ^lesion  of  the  intelli 
gence,  affections,  or  will.  At  one  time  the 
intellectual  disorder  is  confined  to  a  single 
object,  or  a  limited  number  of  objects.  The 
patients  seize  upon  a  false  principle  which 
they  pursue  without  deviating  from  logical 
reasonings,  and  from  which  they  deduce  legi 
timate  consequences  which  modify  their  affec 
tions  and  the  acts  of  their  will.  Aside  from 
this  partial  delirium  they  think,  reason  and 
act  like  other  naen.  Illusions,  hallucinations, 
vicious  associations  of  ideas,  false  and  strange 
convictions,  are  the  basis  of  this  delirium, 
which  I  would  denominate  intellectual  mono 
mania.  At  another,  monomaniacs  are  not  de 
prived  of  the  use  of  their  reason,  but  their 
affections  and  dispositions  are  penrerted."  "It 


THE  TRIAL  OF  DK.  ABNER  BAK1K. 


301 


is   this  which    authors  have  called  reasoning 
mania,  but  which  I  would  name  affective  mo- 


feeling  or  action  altogether  foreign  to  their  or 
dinary  character."     "  It  is  a  fact  that  must  ne 


ver  be  forgotten.,  that  the  phenomena  of  in 
sanity  do  not  lie  on  the  surface,  any  more  than 
those  of  other  diseases,  but  can  be  discovered 
only  by  means  of  close  and  patient  examina 
tion." 

The  foregoing  views  of  insanity,  and  mono 
mania  especially,  are  corroborated  by  the  con- 


nomania.  In  a  third  class  of  cases  a  lesion 
of  the  will  exists.  The  patient  is  drawn  away 
from  his  accustomed  course  to  the  commission 
of  acts  to  which  neither  reason  nor  sentiment 
determines,  which  conscience  rebukes,  and 
which  will  has  no  longer  the  power  to  re 
strain."  (Esquirol,  320.) 

On  page  200  the  same  author  s»ys  :  "  Mo-  \  current  testimony  of  every  respectable  writer 
nomania  is,  of  all  maladies,  that  which  pre-  ion  either  medical  jurisprudence  or  insanity — 
sents  to  the  observer  phenomena  the  most  and  most  fully  and  emphatically  by  Elliotson., 
strange  and  varied,  and  which  offers  for  our  by  Prichard,  by  Beck,  by  Taylor,  and  by  Guy, 
consideration  subjects  the  most  numerous  and  all  standard  authors  on  those  interesting  sub- 
profound.  It  embraces  all  the  mysterious  an- jjects — and  more  particular  references  to 

whose  writings,  although  I  have  one  of  them 
before  me,  would  be  an  useless  consumption  of 
our  time.  And  let  me  here  guard  you  against 
any  delusion  from  oblique  intimations,  already 
t  made  and  probably  to  be  repeated  in  the  con- 

and  the  more  active  the  brain  becomes,  the  (eluding  arguments  for  the  Commonwealth,  that 
more  is  monomania  to  be  feared."  "  Mono-  j  these  are  all  "  doctor's  books"  and  not  there- 
mania  is  essentially  a  disease  of  the  sensibility.  |  fore  to  be  regarded  as  authority  in  a  criminal 
It  reposes  altogether  on  the  affections."  "  This  I  trial.  How  does  the  Lawyer,  the  Juror,  or  the 


omalies  of  sensibility,  all  the  phenomena  of 
the  human  undrstanding,  all  the  consequences 
of  the  perversion  of  our  natural  inclinations, 
and  all  the  errors  of  our  passions." 

"  The  more  the  understanding  is  developed 


malady  presents  all  the  signs  which  charac 
terize  the  passions.  The  delirium  of  mono 
maniacs  is  exclusive,  fixed,  and  permanent, 
like  the  ideas  of  a  passionate  man," 


Judge,  become  well  acquainted  with  the  true 
doctrines  of  insanity  unless  he  shall  be  in 
structed  by  the  learning  and  experience  of 


|  eminent  medical  philosophers  who  have  de- 

In  illustration  of  the  delusions  and  passions  1  voted  their  lives  to  the  observation  and  study 
accompanying  monomania,  the  same  author,  of  it?  And  from  what  source  do  we  and  must 
on  pages  364-'65,  says  :  "  A  father  immolates  { we  derive  our  knowledge  of  the  law  on  subjects 
his  son  on  a  funeral  pile  in  obedience  to  the  I  peculiarly  medical  ?  Necessarily  and  con- 
voice  of  an  angel,  who  commanded  him  to  j  fessedly  from  works  011  medical  jurisprudence, 
imitate  the  sacrifice  of  Abraham."  "Another  which  are,  in  fact,  law  books — being  the  best 
slays  an  infant  in  order  to  make  an  angel."  and  most  approved  treatises  on  s©  much  of 
Prohaska  slays  his  wife  and  two  children  be-  j  civil  and  criminal  jurisprudence  as  is  connect- 
caute  he  believes  that  an  officer  pays  his  addres-  j  ed  with  and  depends  on  medical  science. 
ses  to  the  former."  "  A  mother  is  compelled  to  And  I  aver,  without  fear  of  contradiction 
decapitate  that  one  of  her  children  whom  she  jfrom  any  candid  and  intelligent  source,  that 

"  +u"  v^i™   4v~w.  ™ri^,-,r>   T  1,0-™  ^^A  f^  T™,-,  ™ 


loves  with  the  greatest  tenderness."  Can  we 
reconcile  reason  with  the  murder  of  that  be 
ing  most  dear."  We  can  understand  the  phe 
nomenon  only  by  admitting  the  suspension, 
temporarily,  of  all  understanding,  all  moral 
sensibility  and  volition  " 

On  page  162,  Ray  says  :  "  The  most  simple 
form  of  this  disorder  (monomania)  is  that  in 
which  the  patient  has  imbibed  some  single 
notion  contradictory  to  common  sense  and  to 
his  own  experience,  and  which  seems,  and 
sometimes  no  doubt  really  is,  dependent  on 
errors  of  sensation.  Thus  thousands  have  be 
lieved  their  legs  were  made  of  glass — or  that 
snakes,  fish,  or  eels  had  taken  up  their  abode 
in  their  stomach  or  bowels.  In  many  such 
cases  the  hallucination  is  excited  and  main 
tained  by  impressions  propagated  from  dis 
eased  parts  the  presence  of  which  has  been 
revealed  by  dissection  after  death."  And,  on 
page  167,  the  same  author,  says  :  "  In  the  sim 
plest  form  of  monomania,  the  understanding 
appears  to  be,  and  probably  is,  perfectly 
sound  on  all  subjects  but  those  connected  with 
the  hallucination."  "If  we  would  follow  these 
people  to  the  privacy  of  their  own  dwellings, 
narrowly  observe  their  intercourse  with  their 
friends  and  neighbors,  and  converse  with 
them  on  subjects  nearest  to  their  thoughts,  we 
should  generally  detect  some  perversity  of 


the  books,  from  which  I  have  read  to  you  co 
pious  quotations,  are  the  very  best  and  most 
authentic  on  the  subjects  on  which  they  are 
written.  Had  they  not  been  both  admisible 
and  credible  on  this  trial,  the  Judge  would 
not  have  allowed  me  to  read  them  to  you. 
There  is  no  higher  or  better  authority  on  the 
subject  we  are  considering.  I  shall  therefore 
yet  draw  on  them,  or  on  one  of  them,  copiously 
in  another  portion  of  the  argument.  And  I 
am  quite  sure  that  the  Commonwealth  will 
not  attempt  to  evade  the  force  of  these  books, 
otherwise  than  by  repeating  that  they  are 
"  doctor's  books."  But  not  only  are  they  in 
trinsically  authoritative,  but  they  are,  for  all 
the  purposes  of  this  case,  conclusively  forti 
fied  by  judicial  recognitions  in  both  civil  and 
criminal  trials.  In  1794,  James  Hadfield  was 
acquitted  by  a  British  Jury,  in  England's 
Royal  Court,  on  the  ground  of  monomania 
alone.  Although  he  was  indicted  for  treason 
in  shooting  at  his  sovereign,  and  was  admit 
ted  to  be  perfectly  rational  on  most  subjects, 
the  Jury  found  a  verdict  of  not  guilty,  only 
because  they  believed  that  he  labored  under 
insane  delusion  on  one  subject  which  led  him 
to  attempt  to  kill  his  king  :  and  that  verdict 
has,  so  far  as  I  know  or  believe,  been  approv 
ed  by  all  enlightened  jurists,  and  has  been 
as  a  leading  authority  eyer  since, 


302 


MR,  ROBERTSON'S  SPEECH  ON 


Subsequently  Lord  Orford  was  acquitted 
on  an  indictment  for  murder  on  the  ground  of 
monomania  alone,  there  being  no  doubt  that 
he  was  rational  and  sane  on  all  subjects  un 
connected  with  the  homicide.  In  1835,  Law 
rence  was  acquitted  by  an  American  jury  for 
shooting  at  President  Jackson;  and  his  ac 
quittal  was  on  the  sole  ground  of  monomania 
as  to  the  President ;  and  on  that  trial,  the 
court  recognized  Hadfield's  case  as  establish 
ing  the  true  legal  doctrine.  In  Kentucky  the 
Court  of  Appeals  set  aside  Moor's  will  on 
the  ground  that  the  testator,  though  rational 
on  all  other  subjects,  was  believed  to  hare 
keen  insane  in  the  conviction,  without  cause, 
that  a  brother,  whom  he  pretermitted,  had  at 
tempted  to  poison  him.  And,  more  recently, 
one  of  the  ablest  judges  on  England's  Bench, 
in  the  celebrated  case  of  Dew  v.  Clark,  set 
aside  a  will  on  the  single  ground  that  the  tes 
tator,  who  was  a  physician,  was  a  monoma 
niac  as  to  his  only  child,  (an  amiable  and 
beautiful  daughter,)  whom,  from  her  birth,  he 
charged  with  being  possessed  of  the  Devil, 
and  being  born  as  a  judicial  curse,  to  degrade 
his  name  and  destroy  his  happiness ;  and 
whom,  therefore,  he  not  only  neglected  in  his 
will  but  had  invariably  persecuted  and  abused 
with  a  cruelty  more  than  savage.  And  the 
cases  of  a  similar  kind,  in  England  and  Amer 
ica,  and  in  which,  whether  civil  or  criminal, 
the  doctrine  of  fiadfield's  case  has  been  judi 
cially  recognized,  are  too  numerous  to  justify 
even  a  reference  to  their  titles  on  this  occasion. 
We  may  therefore  conclude,  without  hazard, 
that  the  legal  as  well  as  actual  existence  of 
monomania,  and  its  disabling  exculpatory  in 
fluences,  are  recognized  and  established  by 
that  very  law  by  which  you  are  bound  to  try 
this  case. 

There  is  then,  beyond  doubt,  such  a  thing 
in  law  and  in'fact,  as  insanity  on  one,  or  a  few 
subjects,  while,  in  all  other  respects,  the  same 
mind  is  apparently  sound  and  rational.    And 
this  is  technically  called  monomania,  which  is 
indeed  the  most  prevalent  form  of  insanity,  as 
all  lunatic  asylums  will  prove.    Go  into  any 
one  of  these  receptacles  of  the  insane  and  you 
will,  as  already  suggested,  see  a  large  majority 
of  the  unhappy  tenants  who  reason  well  and 
manifest  intelligence  and  self  possession  on 
many,  perhaps  most  subjects,  and  some  you 
will  be  sure  to  see,  whose  infirmity  you  will 
not  be  able  to  detect  without  a  clue  from  the 
keeper  or  some  acquaintance  who  had  ascer- ; 
tained  the  particular  subject  of  insane  delu 
sion.    But  comparatively  few  among  the  in 
sane  are  totally  so  :  few  are  so  far  deranged  as 
to  appear  to  the  casual  observer  mad  men,  or : 
what  is  vulgarly  considered  crazy  m*n.    But • 
still,  insanity  even  on  one  subject  only,  may, ' 
to  the  whole  extent  of  its  sphere  of  operations, 
be  as  complete  and  stultifying  as  total  de- ; 
rangement  on  all  subjects. 

You  may  now  also  perceive  that  intellectual 
insanity  proceeds  from  some  morbid  excite 
ment  or  derangement  of  the  brain,  or  from 
some  disturbance  of  the  physical  health,  or  of 
some  one  or  more  of  the  five  senses  operating 


on  the  brain,  in  consequence  of  which  false 
and  delusive  images  or  ideas  are  communi 
cated  to  the  mind,  which  are  necessarily  ac 
credited  as  true,  and  from  which,  reasoning 
correctly  from  false  premises  or  imaginary 
facts,  it  deduces  erroneous  conclusions,  with 
intuitive  certainty  of  their  truth.  You  may 
understand  also  that  partial  insanity,  whether 
limited  in jfl^ree  or  in  the  extent  of  its  range, 
is,  like  otfijj;  chronic  diseases,  latent  and  in 
sidious  in  its  incipient  stages,  frequently  slow 
in  its  progress,  always  discoverable  first  by 
the  nearest  friends  and  associates  of  the 
afflicted  subject,  and  rarely  suspected  or  ad 
mitted  by  strangers  or  others  whose  intercourse 
with  the  victim  is  only  occasional  or  transi 
ent.  You  may  presume  too,  as  is  undoubt 
edly  true,  that  all  insanity  of  mind  is  accom 
panied  and  indicated  by  certain  physical 
signs — ia  the  countenance,  the  temperature, 
the  pulse,  the  hang  of  the  muscles,  and  the 
general  expression — which  none  but  those  in 
timately  acquainted  with  its  phenomena  can 
rightly  interpret,  but  which  are,  to  the  skillful 
and  experienced  few,  as  infallible  as  the  ex 
ternal  symptoms  of  any  other  internal  malady. 
And  hence  you  must  feel  the  great  and  con 
trolling  force  of  the  opinions  of  enlightened 
medical  men  on  all  questions  of  insanity : 
and,  you  should  not  be  ignorant  of  the  fact, 
that  the  law  gives  to  such  opinions  peculiar 
credit  and  decisive  effect,  just  as  it  does  to  the 
opinions  of  jurists  on  questions  of  law,  or  to 
those  of  artists  on  questions  of  art. 

And,  geatlemen,  you  cannot,  I  trust,  now 
fail  to  perceive  that  intellectual  insanity  is  not 
any  unsoundness  of  the  reasoning  faculty  or 
derangement  of  the  mind  itself,  psychologi 
cally  or  spiritually  considered,  nor  erroneous 
reasoning  only,  nor  violent  passion  merely  as 
such;  but  is  a  morbid  delusion  of  the  senses, 
the  feelings,  or  the  imagination,  which  fur 
nish  the  material  on  which  the  reason  acts. 
As  the  serene  and  unchanged  sun  of  heaven 
reflects,  from  a  deranged  atmosphere,  unreal 
and  often  distorted  images,  and  even  such  as 
the  beautiful  fata  morgana  in  the  Bay  of  Na 
ples,  so  the  mind  of  man,  operating  through  a 
diseased  brain  or  the  false  suggestions  of  un 
sound  senses,  presents  delusive  objects  or  im 
aginary  facts  which  have  no  existence  else 
where  than  in  a  diseased  brain  or  morbid 
imagination.  The  cause  is  physical,  the  effect 
mental.  It  is  delusion — delusion  of  a  diseased 
brain  or  unsound  senses.  Man  is  so  consti 
tuted  as  to  be  fitly  adapted  to  the  material  and 
moral  world  around  him.  He  is  so  organized 
physically,  when  his  organs  are  all  perfect  and 
sound,  as  to  perceive  external 'objects  as  they 
are,  and  so  constituted  morally,  as  to  be  able, 
by  his  reason,  to  deduce  true  and  right  con 
clusions  from  existing  facts,  and  to  conform 
his  acts  to  the  will  of  God  and  the  laws  of  his 
country.  And,  when  in  this  perfect  condition 
of  constitutional  harmony  and  adaptation,  he 
is,  in  the  legal  sense,  sane,  and  is  responsible 
for  his  conduct ;  because  being  possessed  of  all 
faculties  necessary  for  perceiving  the  truth  or 
doing  his  duty, — for  tiie  proper  exercise  of 


THE  TRIAL  OS  DR.  ABNER  BAKER. 


303 


those  powers  he  should,  as  a  moral  and  ac 
countable  being,  be  responsible  to  God  and  his 
country  ;  and  whatever  the  degree  of  his  intel 
ligence  may  be,  he  is  legally  sane. 

But  let  this  harmony  be  disturbed,  and  this 
organic  adaptation  be  dislocated,  and  then, 
the  mind  being  perverted  and  the  reason  de 
luded  by  causes  which  can  nei^^L  be  eluded 
nor  controlled,  erroneous  jud^MBand  moral 
deviation  are  as  unavoidablel^phe  laws  of 
nature — the  man  is  so  far  out  of  his  element — 
not  as  he  was  made,  and  to  that  extent  unsound 
or  insane  ;  and  consequently  responsibility 
ceases  as  far  as  the  reason  of  it  ceases.  If  a 
man's  vision  is  so  far  deranged  as  to  present 
objects  which  do  not  exist,  or  to  exhibit  in  a 
distorted  or  false  aspect,  such  as  do  exist,  he 
is,  in  that  respect,  insane  :  and,  as  by  a  fun 
damental  law  of  his  constitution,  he  must  be 
lieve  what  he  sees,  and  will  act  according  to 
that  belief,  he  cannot  be  reasonably  respon 
sible  for  the  effects  of  the  optical  illusion.  ft"  or, 
for  the  same  reason,  can  he  be  responsible  for 
the  natural  consequences  of  a  delusion  which 


is  the  necessary 


offspring 
•duced  fr 


of  false  images  or 


imaginations  produced  by  a  disorganized  or 
diseased  brain.— And  this,  therefore,  is  an  il 
lustration  of  legal  insanity,  which  is  denned 
by  Erskine,  in  Hadjield's  case,  to  be  delusion, 
But  this  is  too  comprehensive.     All  delusion 
is  not  insanity ;  for  errors  of  judgment  or  ol 
conduct  arising  only  from  a  bias  of  interest, 
sympathy  or  education,  or  from  a  mere  want 
of  proper  consideration,  or  from  enthusiasm, 
or  from  violent  passion,  are  the  common  fruit 
of  sound,  as  well  as  of  unsound  minds,  and 
are  not,  therefore,  proofs  of  insanity.     When 
a  man  is  actuated  by  a  rational  motive  arising 
from  facts  actually  existing,    then,  however 
excessive  or  exceptionable  his  conduct  may 
be,  or  however  burning  the  enthusiasm  or  vio 
lent  the  passion  that  impels  him,  he  may  not 
be,  in  the  legal  or  scientific  sense,  insane.    He 
is  not  deceived  by  false  images — there  is  no 
delusion  of  the  senses  or  the  brain  ;  the  facts 
on  which  he  reasons  and  acts,  do  actually  ex 
ist,  however  insufficient  they  may  be  for  in 
fluencing  a  sober  and  rational  mind;  and  there 
fore  having  the  power  to  make  right  deductions 
from  them  and  to  control  passions  by  reason, 
he  may  not  be  insane,  and  might  be  responsi 
ble.    But  when  his  motive  arises  from  a  mere 
chimera  of  a  disordered  brain,  or  the  morbid 
imagination  of  a  fact,  or  evidence  of  a  fact, 
when  there  is  neither  such  fact  nor  any  evi 
dence  of  it, — then  his  reason  cannot  undeceive 
him,  his  judgment  must  be  wrong,  and  he  is, 
consequently,  insane  and,  so  far,  irresponsi 
ble.     The  sacrifice  of  Desdemona,  by  her  de 
voted  husband  Othello,  was  the^effect  of  pas 
sion,  and  not  of  disease.    His  reason  acted  on 
facts  which  existed  and  were  communicated 
to  him  by  layo  •  and,  in  both  ethics  and  law, 
he  was  responsible  for  drawing  wrong  infer' 
ences  from  those  facts,  and  for  permitting  his 
passions  to  subjugate  his  reason.    He  was  not 
therefore  insane,  in  the  technical  sense,  and 
was  a  murderer,    But,  had  there  been  no  such 
facts,  nor  any  evidence  of  them,  and  had  he 


only  imagined  them,  or  had  he,  for  example, 
only  imagined,  that  he  saw  a  paramour  of  Des 
demona.,  night  after  night,  entei1  his  room  and 
defile  his  bed  in  his  oivn  presence,  and  escape 
through  the  window  or  the  key-hole  to  avoid  hu 
own  drawn  sword, — then  he  was  undoubtedly 
insane,  and  his  homicide  would  have  been  ex- 
cuseable  as  the  natural  offspring  of  a  disorder 
ed  mind.  This  is  the  kind  of  delusion  which 
is  meant  when  insanity  is  said  to  be  delusion: 
it  is,  I  repeat,  a  delusion  resulting,  not  merely 
from  false  reasoning,  but  from  imaginary  facts, 
the  images  of  which  are  so  vividly  imprinted 
on  the  mind  by  some  distempered  organ  as  to 
force  the  belief  of  their  truth  and  baffle  all 
external  proof  of  their  falsehood.  And  thia 
too  is  the  conception  of  intellectual  insanity 
recognized  in  the  cases  of  Hadfield  and  Lord 
Orford,  and  Dew  v.  Clark,  in  England,  and 
Moor's  will,  and  Lawrence  in  our  own  coun 
try,  and  in  many  other  leading  cases  both  in 
England  and  America. 

From  the  foregoing  considerations  and  au 
thorities,  we  feel  authorized  to  conclude,  that 
intellectual  insanity  is  delusion  unavoidably 
resulting  ^from  some  unhealthy  or  deranged 
condition  of  the  physical  man,  which  neces 
sarily  produces  false  impressions  and  emo 
tions,  and  consequently  perverts  the  reason 
from  a  mentor  of  truth  into  an  inexorable 
2;uide  to  strange  and  perilous  error. 

And  tried  by  this  definition,  the  facts  proved 
in  this  case,  as  we  confidently  believe,  shew, 
beyond  a  rational  doubt,  that,  when  he  shot 
his  brother-in-law,  Dr.  Baker  was  of  unsound 
mind — laboring,  especially  under  insane  de 
lusion  as  to  him  and  his  own  wife,  and,  to 
that  extent,  totalli/  insane. 

But  here  I  feel  it  to  be  my  duty  to  admonish 
you  to  be  careful  to  discriminate  between  le 
gal  insanity,  and  the  ordinary  delusions  of  a 
sound  mind  arising  only  from  passion  or  false 
and  imperfect  reasoning,  and  also  to  under 
stand  ^clearly  that,  in  such  a  case  as  this, 
public  justice  and  security  require  that  the 
plea  of  insanity  should  be  maintained,  not 
only  by  satisfactory  proof  of  delusion,  but  by 
affirmative  and  intrinsic  proof  that  the  source 
of  the  delusion  was  a  disordered  or  excited 
brain  producing  the  honest  conviction  of  tha 
existence  of  facts  which  do  not  exist,  and  for 
the  assumed  existence  of  which  theJe  was  no 
evidence  that  could  have  operated  on  the  be 
lief  of  rational  mind.  In  the  case  of  Moor's 
will,  had  there  been  no  other  evidence  of  the 
testatoi's  insanity  than  the  simple  fact  that  he 
said  his  brother  attempted  to  poison  him,  the 
will  ought  to  have  been  established — because 
that  fact  alone  was  neither  sufficient  proof  of 
the  sincerity  of  the  testator's  declarations,  nor 
of  the  non-existence  of  any  rational  ground 
for  believing  what  he  declared — and,  in  the  ab 
sence  of  other  evidence,  the  fact  that  there 
had  been  an  attempt  to  poison  him  would 
have  been  intrinsically  less  improbable  than 
that  of  his  insanity.  But  it  was  proved  affir 
matively,  not  only  that  he  had  no  rational 
ground  for  his  charge,  but  that  it  sprang  from 
an  insane  conception  when  he  had  been  in  th« 


304 


MR.  ROBERTSON'S  SPEECH 


delirium  of  a  severe  and  protracted  fever.  So, 
too,  had  the  only  evidence  of  Dr.  Baker's  in 
sanity  been  the  fact  that  he  had  said  that 
Daniel  Bates  was  a  ferocious  husband  and  se 
cretly  meditated  his  ruin  because  he  was  pro 
tecting  his  sister,  and  also  that  ho  (Bates) 
had  illicit  intercourse  with  his  (Baker's)  wife, 
I  would  candidly  admit  that  the  plea  of  in 
sanity  is  not  sustained.  But  if,  as  we  contend, 
we  have  indisputably  proved  that  Dr.  Baker 
believed  what  we  have  shown  that  there  was 
no  evidence  to  support,  and  moreover,  that 
which  was  intrinsically  improbable  ^nd  even, 
to  some  extent,  impossible,  then,  without  the 
testimony  as  to  his  physical  appearance  and 
condition,  but  more  conclusively  in  connexion 
with  it,  we  shall,  with  undoubting  confidence, 
insist,  not  only  that  our  plea  is  incontrovert- 
ibly  maintained,  but  that  a  stronger  and  clearer 
case  of  partial  insanity  than  this  is  not  re 
corded  in  any  adjudged  case  on  earth. 

With  such  qualifications  and  cautions,  there 
can  be  no  danger  of  an  unjust  acquittal  on  a 
false  plea  of  jnsanity — without  them,  the 
guilty  will  oflen  be  acquitted  on  the  ground  of 
simulated  insanity  or  of  a  misconception  of  its 
true  character,  and  the  in.iocent  insane  may, 
as  often,  be  unjustly  convicted.  But  we  feel 
sure  that  proper  application  of  the  true' doc 
trines  of  science  and  of  law  to  the  facts  prov 
ed  on  this  trial,  will  insure  the  acquittal  of 
the  accused.  If  there  be  any  wisdom  in  ex 
perience,  truth  in  science,  or  certainty  in 
knowledge,  there  are  two  classes  of  facts  in 
this  case,  either  of  which  must  be  sufficient 
to  prove  Dr.  Baker's  insanity  now  and  when 
he  shot  Bates,  and  both  of  which  united,  pre 
sent  as  conclusive  a  defence  as  ever  was  es 
tablished  in  a  case  of  acquittal  on  the  ground 
of  insane  delusion. 

First.  His  physical  appearance  and  condi 
tion  were,  at  the  time  of  the  shooting,  and  yet 
are  just  such  as,  according  to  all  instructive 
experience,  derived  from  observation,  from  tra 
dition,  or  from  books — indicate  monomania — 
quick  and  excited  pulse,  a  peculiar  tempera 
ture,  a  wild  expression,  a  restless  and  jealous 
temper,  a  singular  flaccidity  and  hang  of  the 
muscles  of  the  face,  and,  when  particular 
topics  are  touched,  an  indescribable  stare  of 
the  eyes  and  enlargement  and  apparent  elec 
trification  of  pupils;  and  incoherence  of  speech, 
vehemence  of  temper,  and  total  absorptoin  of 
feeling.  These  and  other  nameless  badges 
of  partial  insanity  are  not  always  marked  nor 
generally  understood  or  rightly  interpreted  by 
unskilful  and  casual  observers — but  they  are 
soon  noticed  with  concern  by  intimate  asso 
ciates,  and  are  deemed  infallible  symptoms  of 
mental  derangement  by  all  well  acquainted 
with  the  true  character  and  signs  of  such  in 
sanity.  Dr.  Richardson  testified  that  an  ex 
amination  of  the  accused  in  the  prison  con 
vinced  him  that  he  is  an  insane  man,  and  not 
only  did  he  detail  to  you  all  the  evidences 
just  enumerated,  but  others  have  proved  that 
'Dr.  Baker's  condition,  bodily  and  mental,  is 
now  rather  better  than  it  was  when  Bates  was 
shot.  And  who,  I  ask  each  and  all  of  you  in 


full  confidence,  has  closely  observed  the  pr1 
soner  during  this  whole  trial  without  feelin^ 
that  he  is  now  the  victim  of  insane  excitemen 
and  delusion  ?  Not  even  one,  I  am  sure. 

The  first  class  of  facts  alone  ought  there 
fore  to  be  deemed  satisfactory  proof  of  Dr.  Bak 
er's  insanity  when  he  killed  his  brother-in-law. 

Second.. Ij3ut  the  other  class  of  proofs  is 
even  moHMBfcfutable  and  conclusive.  If  Dr. 
Baker  ''^I^P  the  charges  he  made  against 
his  wife  aWBis  mother  and  sisters,  and  others 
— all  of  whose  characters  are  spotless  and  ex 
alted — he  was  certainly  insane  ;  because  there 
was  no  evidence  to  excite,  in  a  sound  mind, 
even  a  suspicion  of  the  truth  of  any  one  of 
the  facts  charged,  and  most  of  them  were  so 
exceedingly  incredible  and  even  morally  im 
possible  as  to  make  it  infinitely  more  difficult 
to  believe  their  truth  than  his  derangement. 
Not  one  fact  has  been  proved  which  could 
tend,  in  the  slightest  degree,  to  authorize  a 
rational  man,  however  jealous,  to  believe  any 
one  of  those  charges.  This  is  admitted  by  all 
the  counsel  for  the  commonwealth. 

Nor  can  there  be  a  rational  doubt  that  Dr. 
Baker  honestly  believed  that  every  charge  was 
true.  This  is  demonstrated  by  the  frequent 
a.nd  almost  constant  reiteration  of  those  charg 
es,  the  circumstantiality  and  identity  of 
all  his  statements,  his  peculiarly  earnest  and 
excited  manner  whenever  he  made  them,  and 
especially  also  by  the  conclusive  fact  that  if 
he  labored  under  no  insane  Delusion,  there  was 
no  imaginable  motive  for  his  unaccountable 
conduct  in  making  such  outrageous  charges, 
or  for  his  \inparalellcd  cruelty  to  his  wife. 
The  imputation  of  a  desire  to  get  a  portion  of 
Bates'  estat?,  or  of  revenge  for  Bates'  delicate 
evasion,  or  suspension,  of  Bakers'  proposal 
to  unite  with  him  in  a  certain  small  adventure, 
is  perfectly  gratuitous  and  absurd.  Possess 
ing,  in  an  eminent  degree,  the  confidence  and 
friendship  of  his  brother-in-law,  and  enjoying 
without  stint,  his  hospitality  and  bounty,  Dr. 
Baker  had  every  motive  that  could  influence  a 
rational,  prudent,  pr  grateful  man,  for  contin 
uing  to  cultivate  th'eir  friendly  and  confiden 
tial  relations,  and  had  every  reason  to  expect, 
as  a  consequence,  the  increased  munificence  of 
Bates.  But,  by  hostility  to  Bates,  and  especial 
ly  by'eflfecting  his  death,  Dr.  Baker  ostracised 
himself,  cut  off  all  possibility  of  ever  enjoying 
his  bounty,  his  aid,  or  any  portion  of  his  large 
estate.  This  itself  would  prove  insanity,  if 
his  charges  against  Bates  were  all  false.  It 
w'oukl  be  equally  ridiculous  to  suppose  that, 
as  a  rational  man,  Dr.  Baker  married  his  wife 
for  the  purpose  of  sacrificing  her,  or  that  ho 
meditated  her  sacrifice  as  a  clumsy  device  for 
extorting  money  from  her  wealthy  and  hon 
orable  father.  His  communication  to  that 
father,  and  his  proposition  to  remove  to  Mis 
souri  on  the  condition  of  an  advance  of  a  com 
parative  small  sum,  are  only  corroborative 
evidences  of  his  insanity.  And  certainly  no 
rational  man,  desiring  to  enjoy  the  liberality 
of  a  father-in-law,  would  have  acted  as  he  did 
Such  a  course  was  sure  to  defeat  such  an 
end.  If  he  ever  suggested  to  Dayis, 


THE  TRIAL  OP  DR.  ABNER  BAKER, 


before  marriage,  that  lie  did  not  expect 
to  live  long  with  his  wife,  (and  of  this  there 
may  be  much  doubt,)  he  meant  only  that,  as, 
in  his  opinion,  Bates  was  conspiring  with 
others  to  prevent  the  union,  and  was  malici 
ously  plotting  his  assassination,  he  would  in 
the  event  of  a  marriage  effect  a  separation 
either  by  his  death  or  by  intrigue  and  calumny. 
This  is  evident  from  all  the  circumstances. 

It  cannot  be  believed  that  any  respectable 
man  perfectly  sane  could  have  conducted  him 
self  as  Dr.  Baker  did.  Such  a  rrionster — such 
a  devil  incarnate  does  not  exist  ameng  men. 
If  he  knew  that  all  ho  published  was  false, 
no  other  than  a  purely  diabolical  motive  could 
have  impelled  him.  It  cannot  be  believed 
that  any  man  of  his  character,  education,  fam 
ily,  hopes,  prospects,  and  associations,  could 
have,  all  at  once,  become  such  a  demon.  And 
what  could  a  rational  man  have  expected  from 
such  a  monstrous  course,  but  the  most  destruc 
tive  consequences  to  himself  and  to  all  whom, 
as  a  human  being,  he  most  loved  ?  He 
could  then  have  had  no  rational  motive  for 
simulation  of  insanity  ;  and  if  he  had,  he 
could  not,  as  a  man  of  sound  mind,  have  act: 
cd,  and  talked,  and  looked  as,  for  a  long  time 
he  did,  and  even  yet  does  habitually.  ^More 
over  had  even  this  been  possible,  and  could  it 
be  believed  that  he  was  so  mysteriously  bent 
on  mischief  and  ruin  as  to  determine  on 
the  destruction  of  his  wife  and  his  brother-in- 
law,  and  to  feign  insanity  for  screening  him 
self  from  punishment,  there  can  be  no  doubt 
that  he  neither  could  nor  would  have  done  as 
lie  did.  By  making  others  believe  that  he  was 
insane  he  would  have  defeated  tLe  imputed 
purpose  of  blasting  his  wife  and  Bates  ;  for 
not  only  was  the  incredibility  of  his  charges 
against  them  the  proof  of  his  insanity,  but 
the  conviction  of  insanity  would  rescue  them 
from  injury.  And,  besides,  had  he  intended 
to  counterfeit  the  appearance  and  conduct  of 
an  insane  man,  he  would  have  attempted  those 
of  a  maniac  or  madman,  which  all  who  saw 
him  would  have  understood  as  insanity,  and 
he  would  not  have  conversed  and  acted  ration 
ally  on  general  subjects  and  occasions — nor 
ii-ould  he  have,  charged  .Bates  icit/i  impregnating 
his  (Baker's)  own  young  sislcr  .  nor  his  mother 
and  sisters  witlt.  keying  a  hoiuw  of  prostitution. 
Nor,  if  his  object  had  been  to  induce  a  belief 
of  his  wife's  guilt  and  Bates'  alleged  miscon 
duct,  would  he  have  implicated  .so  tnany  and 
xiich  other  persons,  or  have  told  so  many  tales 
that  no  rational  being  would  or  could  believe. 
For  instance,  he  would  nave  made  a  general 
charge  of  illicit,  intercourse  between  Bates 
and  his  wife,  which  might  have  been  accred 
ited,  or  at  least  have  created  such  suspicion 
as  to  effect  his  mischievous  end, — but  he  surely 
would  not  have  said,  as  he  often  did,  that  this 
intercourse  was  on  his4o'vn  bed  and  in  his  own 
presence — nor  that  his  young  wife  had  prosti 
tuted  herself  to  the  embraces  of  her  uncle, 
an  ugly  negro,  and  her  own  re]  unable  and  De 
voted  lather — nor  that  her  preceptor,  who  was 
and  is  a  minister  of  the  gospel  of  as  pure 
character  as  any  that  lives,  had  seduced 
39 


when  she  was  only  nine  years  old,  and  had 
also  seduced  a  majority  of  his  female  pupils 
and  kept  a.  harem — nor  would  he  have  publicly 
tried  the  signals  (ascribed  by  him  to  that 
teacher) ,  on  a  respectable  lady  who  had  been 
educated  by  him,  nor  have  declared,  as  he 
?oolishly  did,  that  she  understood  them  per 
fectly  and  responded  to  them  favourably. 
N"o,  no!  Such  could  not  have  been  the  con 
duct  of  a  sane  devil,  (if  such  a  monster  can 
exist  in  human  form,)  who  wished  to  impress 
;he  conviction  that  his  wife  was  foul  and  faith 
less.  Had  such  been  his  purpose,  such  de 
vices  would  have  insured  its  frustration. 

But  he  still  insists  that  he  can  prove  every 
charge,  and  would  rather  be  shot  than  ac 
quitted  on  the  plea  of  insanity,  which  he  in 
dignantly  denies.  Then  I  feel  authorized  to 
conclude  that  Dr.  Baker  believed  all  he  said 
concerning  his  wife  and  Bates.  And  could 
any  rational  man  have  so  believed?  Is  it  pos 
sible  for  a  sane  man  to  doubt  either  that  Dr. 
Baker  believed  all  he  charged,  or  that  such 
belief  is  conclusive  proof  of  an  insane  delu 
sion?  In  addition  to  the  absurd  and  mon 
strous  charges  just  alluded  to,  he  repeatedly 
said  that,  when  on  a  visit  to  his  father's,  his 
mother,  after  he  and  his  wife  had  retired  to 
seel  in  an  upper  room,  was  in  the  habit  of 
opening  the  door  of  their  chamber  to  let  in  to 
bis  wife  another  man,  and  whom  he  compelled, 
one  night,  to  escape  through  the  window,  by 
drawing  his  pistol  on  him;  and  also  that,  du 
ring  that  same  visit  to  his  father's,  a  negro 
man  had  lamed  his  (the  Doctor's)  horse,  for 
he  purpose  of  compelling  him  to  prolong  his 
stay,  so  that  this  black  man  might  continue  to 
enjoy  the  embraces  of  his  (the  Doctor's)  wife. 
I  might  remind  you  of  many  other  facts  conduc 
ing  strongly  to  the  same  conclusion  of  insan 
ity;  but  the  more  prominent,  which  have,  just 
been  grouped  together,  stand  out  in  such  bold 
relief  as  to  leave  no  ground  for  a  doubt  of  the 
truth  and  necessity  of  that  conclusion. 

If  the  accused  was  or  is  stme,  who  on  earth 
was  ever  a  lunatic!  In  him  we  have  found, 
not  a  few  equivocal  signs  of  insanity,  but 
every  badge  known  or  described  by  those  con 
versant  with  the  subject.  This  is,  therefore,  a 
perfect  case.  In  every  point  and  lineament,  of 
the  monomaniac  it  is  well  defined  and  com 
plete.  This  I  affirm  on  the  clear  and  indis 
putable  facts,  on  the  authority  of  the  books, 
and  on  the  undoubtiug  and  concurrent  opin 
ions  of  all  the  medical  men  who  have  testified 
in  this  case. 

The  opinions  of  common  men,  of  common 
observation,  on  a  question  of  insanity,  are  en 
titled  to  but  little,  if  any  influence.  Such  is 
the  doctrine  of  reason  and  of  the  highest  judi 
cial  authority  in  Kentucky  and  elsewhere. 
But  both  the  same  sources  of  authority  unite 
in  giving  great,  and  generally  decisive  effect 
to  the  opinions  of  enlightened  medical  men 
on  that  subject.  And  do  you  not  perceive 
the  reason  of  this  distinction?  On  a  question 
of  partial  insanity  of  mind,  ordinary  men,  in 
-  an  ordinary  condition,  are  not  competent 
her  judges,  any  more  than  they  are  competent  to 


306 


MR.  ROBERTRON'S  SPEECH  ON 


But  the  opinions  of  many  of  our  unprofes 
sional  witnesses  are  entitled  to  influence  —  1st., 
because  they  were  intimate  associates,  and 
father,  and  mother,  and  sisters,  who  had  ex- 

jury's  decision.  But,  on  a  question  of  sanity  j  traordinary  opportunities  of  finding  out  the 
or  insanity  of  body  or  mind,  the  opinions  of  troth;  an(^  2ndly,  because  they  also  testified 
eminent  physicians  and  of  medical  philoso-  ito  facts  -which  sustain  their  own  opinions. 
phers  must  be  regarded  as  persuasive,  if  not  |  Andj  so  far  as  opinions  can  operate,  AVB  have. 


decide  the  most  difficult  questions  of  abstruse 
law.  So  far  as  sucli  witnesses  may  be  con 
cerned,  in  sucli  cases,  the  facts  proved,  and 
not  their  opinions,  must  form  the  basis  of  the 


controlling.  On  this  point  we  will  read,  from 
Ray,  the  following  forcible  remarks:  "As  the 
conclusions  of  the  jury  relative  to  the  existence 
of  insanity,  must  necessarily  be  based  em  the 
testimony  offered  by  the  parties,  it  is  a  sub 
ject  of  the  utmost  importance,  by  whom  and  w  ,,  '  . 

$^^%£^^^*\ffi£^'^.^**« 

v  rlnt.v  of  the  inrv!Bates;  and  he  has  also  told  you  facts  which 
beyond  a  doubt,  that  this  opinion  is 
It  is  true  hc  said  that,  for  sometime, 


what  is  yet  more  satisfactory,  the  concurrent 
and  unhesitating  opinions  of  the  three  medical 
gentlemen  who  have  testified  before  you,  two 
of  them  at  the  instance  of  the  accused  and  the 
other  at  that  of  thc  Commonwealth.  Dr. 
has  told  vou  that  he  had  no 


matter  of  fact,  the  only  dutv  of  the  jury 
would  be  to  sec  that  they  were  sufficient  for  IP™™, 
the  purpose  and  produced  from  authentic  right. 
sources.  But  on  the  contrary,  it  is  a  matter  of  he  was  perplexed  between  the  deduction  of 
inference  to  be  drawn  from  certain  data,  and  'his  brother's  insanity  and  the  presumption  that 
this  is  a  duty  for  which  our  juries,  as  at  present  !  his  wife  might  have  been  afflicted  with  nym- 
constituted,  are  manifestly  unfit."  —  "Suchlphomania  —  but  that,  as  soon  as  he  had  read 
however  is  made  their  business,  and,  in  the:  an  approved  treatise  on  insanity,  and  learned 


performance  of  it,  there  is  but  one  alternative 
for  them  to  follow — either  to  receive,  with  the 


the  facts  correctly,  which  he  had  never  previ 
ously   done,  he  came   to   the   clear  and  fixed 


subject,  or  to  slight  them  altogether,  and  rely 
solely  on   their   own  judgment  of  the  facts." 


utmost  deference,  the  opinions  of  those  who  j  conclusion  that  his  brother  was  a  monomaniac. 
have  a  professional  acquaintance  with  the  Dr.  Richardson  is  eminently  qualified  to  judge. 

His  long  experience,  his  peculair  position  for 
more  than  25  years,  and  his  extensive  obser- 

"It  is  perhaps  of  little  consequence  who  testi-  j  Vation  of  insanity  in  all  its  forms  during  that 
fies  to  a  simple  fact  which  it  requires  only  time?  entitlc  his  opinions  in  this  case  to  very 
eyes  to  see  or  ears  to  hear;  but  it  is  all  very  ,,reat  rcspcct.  HC  ]1US  testified  that  his  exam- 
different  with  the  delivery  of  opinions  that  are  .  ination  of  thc  accuscd  woulll  alonc  have  con. 
to  shape  the  final  decision.  As  this  requires  j  yinced  Mm  of  hig  ut  insanitv.  aild  for  thig 

the  exercise  of  judgment,  as  well  as  observa-        ini        hc  has     iveu  vou  all  th'e  reagons 
turn,  there  ought  to  be  some  kind  of  quahfica- ,    m  fi  d  .      h      "      approved  books  as  signs  ol' 
Sons;^  rC-1  o^o.:  whT^^ij^^     **  ^so  Sa° Je  testimonAiven 
n!ere  facts/'  (p  57.)     And  again    from  page  &  ±1  !±!!S  ^^!^\  £*£ 


59  as  follows:  "An  enlightened  and  conscien 
tious  jury,  when,  required  to  decide  in  a  case 
of  doubtful  insanity,  which  is  to  determine  the 
weal  or  woe  of  a  fellow-being,  fully  alive  to 
the  delicacy  and  responsibility  of  their  situa 
tion  and  of  their  own  incompetcncy,  unaided 
by  the  counsels  of  others,  will  be  satisfied  with 
nothing  less  than  the  opinions  of  those  who 
have  possessed  unusual  opportunities  for  study 
ing  the  character  and  conduct  of  the  insane, 
and  have  the  qualities  of  mind  necessary  to 


enable  them  to  profit  by  their   observations. 

ed  to 

1  .<(>(.•  n 
tate  of  common  sense,  that  they  should  have 


If  they  are  obliged  to  decide  on  professional 


subjects,  it  would  seem  Init  just,  and  the  dic 
tate  of  common  sense,  that  they  should  ha 
the  benefit  of  the  best  professional  advice." 

The  suggestions,  therefore,  of  a  few  common 
men  on  the  side  df  the  Commonwealth,  that, 
in  an  occasional  view  transiently  taken  of 
Dr.  Baker,  they  did  not  perceive  that,  he  was 
insane,  are  entitled  to  no  effect  whatever — 1st., 
because  they  were  incompetent  judges:  2nd., 
because  their  opportunities  were  insufficient} 
and,  3rd.,  because  the  accused  is  admitted  to 
have  been  apparently  rational  on  the  common 
subjects  on  which  they  happened  to  hear  him 
speak. 


on  the  facts  proved  by  these  witnesses,  he  could 
feel  no  doubt  that  Dr.  Baker,  when  he  killed 
Bates,  was  insane  as  to  him  and  his  own  wife, 
at  least;  and  that  the  killing  was  thc  offspring 


of  that 


delusion.     He  moreover,  gave 


you  many  strong  reasons  for  his  conclusions, 
and  emphatically  affirmed  that  he  had  never 
seen  or  read  of  a  clearer  or  better  defined  case 
of  particular  insanity  than  that  of  the  prisoner 
when,  before,  and  since  he  shot  Bates.  The 
other  professional  witness,  your  own  physician, 
Dr.  Reid,  who  was  introduced  by  the  Com 
monwealth,  had  not  heard  the  other  witnesses; 
but,  on  a  hypothetical  statement  of  the  promi- 
niucnt  facts  as  proved,  (and  which  Avas  admit 
ted  to  he  true,)  he  said  that  thc  prisoner  was 
'•'undoubtedly  insane"  when  hc  killed  Bates, 
and  was,  in  his  opinion,  ''undoubtedly"  irre 
sponsible  for  that  insane  act. 

And,  gentlemen,  why  has  no  physician  been 
brought  to  testify  that  the  facts  do  not  prove 
insanity?  Have  not  the  numerous,  wealthy, 
u nd  vigilant  prosecutors  long  known  that  the 
accused  would  be  defended  on  thc  plea  of  in 
sanity?  Thc  only  reason  is,  that  they  could 
not  find  a  respectable  physician  in  Kentucky 
who  would  not  have  concurred,  astheiivwitness, 
Dr.  Reid,  did,  with  Dr.  Richardson.'"  And  1 


THE  TRIAL  OF  DR.  ABNBR  BAKER. 


807 


am  confident  that  no  honest  and  enlightened 
physician  in  America  would  venture  to  ex 
press  any  other  opinion  on  the  facts  than  that 
so  firmly,  clearly,  and  imposingly  given  by 
Dr.  Richardson. 

But  we  have  been  asked  why  the  prisoner 
was  not  placed,  by  his  friends,  in  a  lunatic 
asylum?  The  question  is  irrelevant;  because 
the  omission  to  confine  him  in  an  asylum  can 
not  impair  the  force  of  the  facts  conducing  to 
prove  his  insanity.  Nevertheless,  the  answer 
is: — 1st.,  because  his  friends  did  not  apprehend 
any  mischief — 2nd.,  because  they  were  advised 
that  a  winter's  residence  in  Cuba,  far  from  the 
disturbing  scenes  and  associations,  might  re 
store  his  physical  strength,  and,  with  it,  his 
mental  sanity — and  3rd.,  they  apprehended 
that,  were  they,  before  a  final  trial,  to  attempt 
to  send  him  to  the  asylum,  the  act  would  be 
ascribed  to  a  disposition  to  elude  a  trial  by 
false  means.  But  there  can  be  no  doubt  that 
his  father,  mother,  and  sisters,  and  others  at 
Lancaster,  discovered,  and  conversed  with 
each  other  about  his  derangement  before  he 
killed  Bates — and  the  letter  written,  before 
that  event,  by  his  father  to  his  sons  at  Knox- 
ville,  proves  that  he  was  of  opinion  that  his  son 
Abner  was  then  insane. 

You  should  not  here  forget  that  no  fact  is 
proved  by  the  prosecution  inconsistent  with  the 
evidences  of  insanity  established  by  the  defence. 
The  fact  that  the  accused  manifested  some 
skill  and  self  possession  when  he  shot  Bates  is 
not  at  all  inconsistent  with  the  existence  of 
insane  delusion  as  proved.  All  lunatics  and 
all  suicides  manifest  similar  sagacity  and  dex 
terity  on  similar  occasions;  and,  if  this  should 
disprove  insanity  at  the  moment  of  killing,  no 
man  would  ever  have  been  acquitted  on  the 
ground  of  derangement,  nor  should  ever  plead 
insanity  on  an  indictment  for  murder;  and 
then,  too,  Hadfield,  and  Lord  Orford,  and 
Lawrence,  and  a  host  of  others  were  acquitted 
illegally;  for,  in  all  these  cases,  the  homicide 
was  skillfully  executed  or  attempted. 

Now,  gentlemen,  considering  the  true  nature 
and  signs  of  intellectual  insanity,  general  or 
particular,  as  established  by  experience  and 
improved  science — considering  the  physical 
appearance  and  condition  of  the  accused — con 
sidering  the  facts  proved  as  to  his  conduct  and 
his  conversations — and  considering 'the  medi 
cal  opinions  of  all  the  professional  witnesses 
and  the  great  respect  to  which  these  alone 
would  be  entitled — can  any  one  of  you, 
all  sworn  to  decide  this  case  according  to  the 
law  and  the  testimony,  allow  yourself  to  doubt 
that  the  accused,  when  he  killed  his  brother- 
in-law,  (which  act  itself,  Avithout  any  rational 
motive,  is  strong  evidence  of  insanity,)  labored 
under  an  insane  delusion  as  to  said  Bates  and 
his  own  wife?  May  we  not  reiterate  that  a 
clearer,  stronger  case  of  monomania  cannot 
be  found  on  record?  Can  there  be  a  doubt 
that  the  prisoner  imagined  strange  facts  that 
did  not  exist,  for  tho  supposed  existence  of 


which  there  was  no  evidence  whatever,  and  of 
the  falsehood  of  which  no  arguments  or  proofs 
could  have  convinced  him?  Did  not  a  morbid 
brain  impress  all  these  false  and  delusive  ima 
ges  on  his  mind;  and  did  he  not,  therefore, 
believe  them  all  to  be  true,  as  firmly  as  a  man 
of  sound  mind  would  be  bound  to  believe  the 
testimony  of  his  own  senses'?  Then,  in  fact, 
and  in  law,  he  was  insane  and  this  branch  of 
his  defence  is  satisfactorily  sustained. 

The  three  employed  counsel,  who  have  ar 
gued  this  case,  have  not  discussed  the  facts,  as 
proved,  nor  attempted  to  reconcile  them  with 
the  assumption  of  the  prisoner's  perfect  sanity 
— nor  has  any  one  of  then  ventured  to  deny 
that  he  was  and  yet  is  partially  insane,  other 
wise  than  by  insinuating  that  there  is  no  other 
insanity  than  that  which  is  general;  and  thus 
virtually  conceding  that,  if  there  be  such  insan 
ity  as  monomania,  the  accused  was  a  mono 
maniac  on  the  subject  of  his  wife  and  Bates. 
But  nevertheless,  they  all  have  argued  that, 
admitting  this  insane  delusion,  the  accused, 
being  apparently  rational  on  other  subjects, 
should  be  presumed  to  have  known  right 
from  wrong,  and  to  have  been  conscious, 
therefore,  that  he  was  violating  the  law 
in  killing  Bates.  And,  if  he  should  be 
found  guilty,  I  feel  confident  that  the  verdict 
will  be  the  consequence  of  error  on  this  point. 

It  is  important  now,  therefore,  to  endeavor 
to  understand  the  doctrine  of  the  law  which 
should  govern  this  case. 

The  first  of  the  hired  counsel  for  the  prose 
cution,  who  opened  the  argument,  did  not  touch 
the  law.  He  dealt  chiefly  in  appeals  to  your 
passions  and  prejudices,  and  drew  largely  on 
his  own  convenient  imagination  for  facts,  as 
well  as  arguments;  the  second,  though  he 
glanced  at  some  law,  was  equally  fanciful  and 
pathetic.  But  the  third,  whom  I  succeed,  read 
copiously  from  Blackstone  the  common  law  of 
homicide,  which  no  lawyer  controverts,  and 
from  the  Bible  also  several  chapters  on  the 
same  subject,  and  not  one  word  of  which,  as 
he  finally  admitted,  had  any  legitimate  appli 
cation  to  your  present  duty. 

Why  you  were  detained  with  so  much  su 
perfluous  reading  from  Blackstone  cannot  be 
imagined,  unless  the  object  was  to  make  you 
believe  that  it  is  all  pertinent  and  against  the 
prisoner.  But  the  purpose  of  introducing  the 
Bible  cannot  be  mistaken;  and  it  is  matter 
of  regret  that  this  holy  book  should  be  perver 
ted  and  prostituted  to  any  such  unholy  end  as 
that  of  hanging  a  man  who  is  entitled  to  an 
acquittal  by  the  local  law  of  the  land — tho 
only  law  by  which  you  can  try  him.  Does 
the  counsel  suppose  that  he  can  delude  you 
into  the  belief  that  you  can  administer  the 
Mosaic  law  of  God?  I  trust  that  you  will 
undeceive  him,  and  let  him  know  that  the  ac 
cused  can  be  sacrificed  by  jour  verdict  on  no 
other  altar  than  that  of  human  law.  Re 
sponsibility  to  God  must  be  enforced  by  God- 


308 


MR.  ROBERTSON'S  SPEECH  ON 


The  only  portions  of  the  extensive  readings 
in  behalf  of  the  Commonwealth,  which  is  ap 
plicable  to  this  case,  is  so  much  of  the  defini 
tion  of  murder  as  requires,  as  indispensable  to 
temporal  punishment,  that  the  manslayer  shall 
be  of  sound  mind,  and  declares  that,  if  he 
had  discretion  enough  to  know  that  he  was 
doing  wrong,  and  a  sufficient  degree  of  moral 
power  to  avoid  it,  he  should  bo  criminally  re 
sponsible. 

Our  criminal  code,  whose  end  is,  not  retri 
bution  or  revenge,  but  prevention  and  security 
only,  intends  that  the  example  of  punishment 
shall  effect  this  end;  and  consequently,  as  ex 
ample  could  not  deter  those  who  have  not  the 
capacity  of  knowing  their  duty  or  the  power 
to  perform  it,  the  law  will  not  punish  for  an 
act  springing  from  an  insane  delusion,  and 
which  the  actor  had  not  the  power  to  avoid. 
A  voluntary  abuse  of  free  will,  by  a  rational 
creature,  is  the  foundation  of  all  guilt,  moral 
or  legal.  When  the  will  is  either  perverted, 
or  ovenvhelmed  by  unavoidable  delusion,  the 
blind  agent  is  not  responsible  to  any  forum, 
human  or  divine.  To  perish  for  an  act  which 
was  the  offspring  of  such  a  deluded  will,  would 
be  inconsistent  with  humanity,  justice,  and 
public  policy.  No  punishment,  however  certain 
and  sanguinary,  could  prevent  the  recurrence 
of  similar  acts  under  similar  circumstances. 
Consequently,  judicial  punishment,  in  such  a 
case,  would  be  judicial  murder — and  therefore 
the  punitory  sanctions  of  our  law  are  addressed 
to  those  who  have  the  intellectual  power  to  per 
ceive  right  and  the  moral  power  to  abstain  from 
wrong.  Hence,  an  idiot  is  not  punishable  for 
any  act;  and,  for  the  same  reason,  a  lunatic, 
when  deranged  on  all  subjects,  should  not  be 
liable  to  any  punishment  for  any  act  'done  du 
ring  the  prevalence  of  the  general  insanity. 
A  very  large  majority  of  lunatics,  however, 
are  only  partially  insane;  and  to  this  compre 
hensive  class,  belongs  the  monomaniac. 

But,  within  the  sphere  of  the  derangement, 
whether  general  or  only  partial  in  its  extent, 

is  not  the  unfortunate  victim  of  delusion  as  jrect  and  positive  proof  of  its  actual  existence.-' 
insane  in  the  one  class  of  cases  as  in  the  other  |      The  only  doubt  we  feel  concerning  this  view 

is,  whether  it  may  not  be  too  vague  and  even 
not  altogether  accurate  in  the  concession  that 
an  act  on  one  subject  .cannot  be  presumed  to 
have  been  influenced  by  insanity  on  any  other 
subject;  for,  there  may  be  doubt  whether  :v 
mind  insane  on  some  subjects  can  be  perfectly 
sane  on  any  other  subject,  and  still  more  doubt 
whether  insane  delusion  on  one  point  only 
may  not  exercise  a  controlling  influence  over 
all  the  operations  of  the  mind  and  emotion? 
of  the  heart.  We  admit,  however,  that  this 
general  qualification  suggested  by  Mr.  Evans 
has  been  judicially  recognized  and  established 


lectual  darkness  also?  We  insist  that  this  pre  - 
sumption  is  authorized  by  neither  reason  nor 
justice,  philosophy  nor  laAV. 

Ever  since  the  acquittal  of  Hadfield  in  1794, 
the  jurists  of  England  and  America  have  re 
cognized  the  doctrine  that  a  person,  doing  an 
act  under  the  influence  of  insane  delusion  and 
who  was,  in  consequence  of  derangement,  un  - 
conscious  of  doing  wrong  or  was  impelled  by 
an  irresistible  motive,  is  not  subject  to 
legal  punishment  for  such  inevitable  conduct. 
But,  whether  an  act  done  within  the  range  of 
partial  insanity  and  under  its  influence  should 
be  presumed  to  have  been  impelled  by  irresisti 
ble  impulse  or  been  committed  without  a  full 
consciousness  of  its  being  wrong,  is  a  question 
which  may  not  have  been  authoritatively  set 
tled  in  England  with  satisfactory  precision  or 
undoubted  certainty.  We  are  satisfied,  how 
ever,  that  a  careful  analysis  of  the  adjudged 
cases  u-nd  of  the  elementary  discussions  on 
this  subject  should  result  in  a  conviction  that 
such  is  the  presumption  of  reason,  and  ought 
to  be,  and  is  that  also  of  the  law. 

The  scientific  and  eminent  jurist  Evans,  in 
his  Annotations  to  Po their  on  obligations,  re 
cognizes  Avha.t  we  consider  the  true  rule  in  the 
following  perspicuous  mid  precise  terms — ""I 
cannot  but  think  that  a  mental  disorder  opera 
ting  on  partial  subjects,  should,  with  regard  to 
these  subjects,  be  attended  with  the  same  ef 
fects  as  a  total  deprivation  of  reason,  and  that, 
on  the  other  hand,  such  a  partial  disorder, 
operating  only  on  particular  subjects,  should 
not,  in  its  legal  effects,  have  an  influence  more 
extensive  than  the  subjects  to  which  it  applies; 
and  that  every  question  should  be  reduced  to 
the  point,  whether  the  act  under  consideration 
proceeded  from  a  mind  fully  capable,  in  re 
spect  to  that  act,  of  exercising  free,  sound,  and 
discriminating  judgment;  but,  in  case  the  in 
firmity  is  established  to  exist,  the  tendency  of 
it  to  direct  or  fetter  the  operations  of  the  mind 
should  be,  in  general,  regarded  as  sufficient 
presumptive  evidence,  without  requiring  a  di- 


— in  other  words,  if  a  man  be  insane  on  one 
subject  only,  is  not  his  insanity,  within  the 
whole  circumscribed  range  of  that  subject,  as 


total   as   it  would 


been  had   he  been 


equally  insane  on  all  subjects?  And,  if  then, 
a  monomaniac,  acting  under  the  influence  of 
his  insane  delusion,  kill  a  fellow-being,  as  to 
whom  he  is  deranged,  is  he  more  guilty  than 
he  would  have  been  had  his  insanity  been 
general?  As  to  every  thing  within  the  insane 
zone,  may  not  the  mind  be  unhinged,  and,  for 
all  rational  purposes,  powerless?  And  should 
it  be  predicated  of  a  man  in  this  position,  that, 
because,  beyond  the  circle  of  eclipse,  he  en-  j  as  being  true  both  in  civil  and  criminal  juris- 


joys,  in  some  degree,  the  light  of  reason  and 
the  blessing  of  moral  power,  therefore  he  shall 
b«  presumed  to  have  the  benefit  of  a  reflected 
light,  or  of  some  dim  twilight  to  guide  his 
«tcpi  through  the  delusive  labyrinth  of  intel- 


prudence.  But  what  reasonable  objection 
can  be  made  to  his  rule  in  any  other  respect? 
If  the  law — assuming  that  a  person  admitted 
to  be  insane  on  one  subject  only  is  perfectly  ra 
tional  and  free  to  act  as  he  ought  on  all  other 


THE  TRIAL  OF  DR.  ABNER  BAKER. 


309 


subjects — therefore,  presumes  that  there  is 
equal  consciousness  of  right  and  wrong  and 
ability  to  pursue  the  right  and  avoid  the 
wrong  in  all  the  monomaniac's  conduct  within 
the  scope  and  influence  of  the  particular 
insanity — then  the  plea  of  insanity  could 
be  no  available  defence  to  any  but  idiots 
or  those  lunatics  who  are  totally  insane  on 
all  subjects.  It  could  be  no  defence  to 
those  whose  insanity  is  partial  either  in  de 
gree  or  extent;  none  to  a  vast  majority  of 
the  occupants  of  our  mad-houses;  none  what 
ever,  to  any,  except  such  as  will  never  need 
it;  for  it  is  not  probable  that  an  idiot  will  ever 
be  indicted  for  murder,  and  we  should  not 
presume  that  a  lunatic,  totally  deranged  on  all 
subjects,  and,  while  in  that  state  committing  a 
homicide  or  other  breach  of  the  penal  law, 
will  ever  be  prosecuted  as  a  criminal.  But 
we  know  that  particular  insanity  is  a  legal  de 
fence  in  a  criminal  prosecution,  and  that  it  has 
been  successfully  pleaded  in  many  cases.  And 
it  can  have  been-  thus  successful  on  one  hypoth 
esis  only — and  that  is,  that,  when  it  has  been 
proved  that  the  act  charged  as  a  crime  was  done 
within  the  range  and  under  the  influence  of 
monomania,  the  law  presumes,  prima  facie, 
that  it  was  done  involuntarily  or  withoiit  a 
consciousness  of  criminality— for,  if  the  exis 
tence  and  potential  exercise  of  reason  gen 
erally,  should  legally  imply  the  capacity  to 
exert  it  conservatively  on  the  subject  of  par 
ticular  derangement,  then,  certainty  there 
could  no  proof  of  facts  sufficient  to  shew  that 
it  could  not,  and  therefore  ought  not,  to  have 
been  preventively  exerted  in  every  case  and 
on  all  occasions  unaccompanied  by  actual  du 
ress.  To  shew  that  reason  on  some  subjects 
does  not  imply  effectual  reason  on  the  particu 
lar  subject  of  insanity,  Eay  says — "No  one 
vrill  be  bold  enough  to  affirm  that  a  certain 
idea  cannot  possibly  be  connected  with  a 
certain  other  idea  in  a  healthy  state  of 
mind,  least  of  all  when  it  is  disordered  by 


well  knew  that  he  was  doing  wrong  and  ought 
to  be  punished1?  Would  it  not  rather  be  more 
reasonable  to  presume  that,  under  the  influ 
ence  of  the  derangement  and  in  the  tumult  of 
passions  kindled  by  it,  he  was  impelled  by 
overwhelming  delusion,  or  conscientiously  and 
firmly  believed  that  he  was  the  rightful  aven 
ger  of  his  own  wrongs,  and  that  the  mode  re 
sorted  to  was  a  proper  and  legal  right?  On 
this  question,  Kay,  p  260,  says — "Each  delu 
sion  alike  was  the  offspring  of  the  same  de 
rangement,  and  it  is  unjust  and  unphilosophi- 
cal  to  regard  one  with  indifference  as  the  hal 
lucination  of  a  madman,  and  be  moved  with 
horror  at  the  other  and  visit  it  with  the  utmost, 
terrors  of  the  law,  as  the  act  of  a  brutal  mur 
derer."  Again,  on  p  259,  he  says — "Now, 
though  such  a  person  may  not  be  governed  by 
any  blind  irresistible  impulse,  yet  to  judge  his 
acts  by  the  standard  of  sanity,  and  attribute  the 
same  legal  consequences  as  to  those  of  sane 
men  would  be  clearly  unjust,  because  their  real 
tendency  is  not  and  cannot  be  perceived  by  him. 
Not  that  his  abstract  notions  of  the  nature  of 
crime  are  at  all  altered,  for  they  are  not,  but 
the  real  character '  of  his  acts  being  miscon 
ceived,  he  does  not  associate  them  with  their 
ordinary  moral  relations.  No  fear  of  pun isb- 
inenjt  restrains  him  from  committing  criminal 
acts,  for  he  is  totally  unconscious  of  violating 
any  penal  law,  and  therefore  the  great  end  ol' 
punishment,  the  prevention  of  crime,  is  wholly 
lost  in  his  case."  And  again,  on  p  255-6, 
speaking  of  homicide  produced  by  monomania, 
he  says — "It  must  not  be  overlooked  that,  in 
cases  like  the  latter,  the  insanity  manifests 
itself,  not  only  in  the  fancied  injury,  but  in  the 
disproportionate  punishment  which  he  inflicts 
upon  the  offender,  and  it  is  absurd  to  consider 
one  manifestation  as  a  delusion  and  the  other 
a  crime."  This  appears  to  be  sound  logic 
and  good  law.  And,  in  this  case,  the  act  of 
killing  Bates — if  there  was  no  rational  motive 
or  actual  provocation — was,  alone,  strong  evi- 


disease,  so  that  the  existence  of  partial  in-  \  dence  of  insane  delusion,  as  much  as  to  the 
sanity  once  established,  it  is  for  no  human  i  moral  and  legal  character  of  the  act,  as  it 
tribunal  to  arbitrarily  circumscribe  the  circle  j  could  be  as  to  the  imaginary  cause  and  end  of 
of  its.  diseased  operations."  (p  253.)  If  I  it.  The  fact  that  the  accused  appeared  to  be 


there  be  such  insane  delusion  on  a  particular 
subject  as  to  imagine  the  existence  of  things 
which  have  no  semblance  of  real  existence, 


rational  on  some  subjects,  may  be  sufficient 
to  show  that  he  knew  right  from  wrong,  and 
had  moral  ability  to  abstain  from  wrong, 


is  not  the   mind  totally  insane   on  that  sub-  j  within  the  scope  of  those  subjects;  but  it  ought 
ject?     And  if  so,  would  it  not  be  unphilosoph-  not,  therefore,  to  be  deemed  sufficient  proof  of 


ical  to  presume  an  unfettered  will  on  that  sub 
ject,  or  a  perfect  consciousness  of  the  moral 
and  legal  character  or  consequence  of  any  act 


his  possessing  such  reason  and  moral  sense 
and  power  as  to  objects  or  acts  within  the 
range  of  his  insanity.  He  doubtless  knew  that 


excited  by  that  insanity?  Such  a  presumption  1  murder  was  criminal — but  should  not  be  pre- 
would  be,  moreover,  absurd;  because  it  would  sumed  to  have  known  that  the  killing  of 
presuppose  the  non-existence,  (partially  at  j  Bates,  as  to  whom  he  was  insane,  would  be 


least,)  of  insanity.  Besides,  when  an  act  of 
violence — homicide,  for  instance — results  sole 
ly  and  directly  from  an  insane  delusion  re 
specting  the  person  killed,  would  it  not  be 
unreasonable  to  presume  that  there  was  no 
moral  delusion  also,  or  that,  in  the  act  of 
killing,  the  agent  enjoyed  moral  freedom  and 


murder,  or,  in  any  sense,  a  criminal  act. 

Considering  this  palpable  distinction  be 
tween  a  consciousness  of  right  and  wrong  gen 
erally  and  in  the  special  case  as  to  which  there 
is  insanity,  Ray,  p  33-4,  says— "The  purest 
minds  cannot  express  greater  horror  and  loath - 
,ing  of  various  crime-3  than  madmen  often  do, 


310 


MR.  ROBERTSON'S  SPEECH  ON 


and  from  precisely  the  same  causes.  Their 
abstract  conception  of  crime,  not  being  per 
verted  by  the  influence  of  disease,  presents  its 
hideous  outlines  as  strongly  denned  as  they 
ever  were  in  the  healthiest  condition;'  and 
the  disapprobation  they  express  at  the  sight 
arises  from  sincere  and  honest  convictions. 
The  particular  criminal  act,  however,  becomes 
1  divorced  in  their  minds  from  its  relations  to 
crime  in  the  abstract,  and  being  regarded  only 
in  connexion  with  some  favorite  object,  which 
it  may  help  to  obtain,  and  which  they  see  no 
reason  to  refrain  from  pursuing,  is  evinced,  in 
fact,  as  of  a  highly  laudable  and  meritorious 
nature.  Herein,  then,  consists  their  insanity — 
not  in  preferring  vice  to  virtue,  in  applauding 
crime  and  ridiculing  virtue — but  in  being  una 
ble  to  discern  the  identity  of  nature  between  a 
particular  crime  and  all  other  crimes,  whereby 
they  are  led  to  approve  what,  in  general 
terms,  they  have  already  condemned.''  Again, 
on  p  41,  he  says — "The  existence  of  the  illu 
sion  is  obvious  and  cannot  be  mistaken,  but 
what  may  be  the  views  of  the  maniac  respect 
ing  the  moral  character  of  the  criminal  acts 
which  he  commits  under  its  influence  can  never 
be  exactly  known,  and,  therefore,  they  ought 
not  to  be  made  the  criterion  of  responsibility. 
But  it  is  known  that  one  of  the  most  striking 
and  characteristic  effects  of  insanity  in  the 
mental  operations,  is  to  destroy  the  relation 


between  ends  and  means — between  the  object 


automatic  impulse  with  which  the  reason  has 
as  'little  to  do  as  with  the  movements  of  a 
new-born  infant.  That  the  notions  of  right 
and  wrong  (may)  continue  unimpaired  under 
these  circumstances  proves  only  the  partial 
operation  of  the  disease ;  but  in*  the  internal 
struggle  that  takes  place  between  the  affective 
(moral)  and  intellectual  powers,  the  former 
have  the  advantage  of  being  raised  to  their 
maximum  of  energy  by  the  excitement  of  dis 
ease,  which,  on  the  other  hand,  rather  tends 
to  diminish  the  activity  of  the  latter.  "We  have 
seen  that  generally  after  the  fatal  act  had  been 
accomplished  and  the  violence  of  the  parox- 
ism  subsided,  the  monomaniac  has  gone  and 
delivered  himself  into  the  hands  of  justice." 
Again,  on  p.  262  : — "  the  real  point  at  issue 
is,  whether  the  fear  of  punishment  or  even 
the  consciousness  of  wrong  doing,  destroys 
the  supposition  of  insanity — and  this  is  set 
tled  by  the  well  known  fact  that  the  inmates 
of  lunatic  asylums,  after  having  committed 
some  reprehensible  acts,  will  often  persist  in 
denying  their  agency  in  them  in  order  to  avoid 
the  reprimand  or  punishment  which  they 
know  would  follow  their  conviction/'  And 
again,  p.  263  : — "  "We  have  an  immense  mass 
of  cases  related  by  men  of  unquestionable 
competency  and  veracity,  where  people  are  ir 
resistibly  impelled  to  the  commission  of  crim 
inal  acts  while  fully  conscious  of  their  nature 
and  consequences:  and  the  force  of  these  facts 
must  be  overcome  by  something  more  than 


angry  declamation  against  visional y  theories 
and  ill-judged  humanity.     They  are  not  fic 
tions  invented  by  medical  men  (as  was  rather 
3ro,~  |  broadly  charged  upon  them   in  some   of  the 


in  view,  and  the  course  necessary  to  pursue, 
in  order  to  obtain  it.  It  was  in  accordance 
with  these  views  that  Lord  Erskine 
nounced  delusion  to  be  the  true  test  of  such 
insanity  as  exempts  from  punishment,  and  that 
the  correctness  of  the  principle  was  recognized 
by  the  Court.'-' 

Providence  has  wisely  harmonized  our  in 
tellectual  and  moral  faculties  so  that  when 
ever  we  are  able  to  perceive  the  truth,  we 
generally  have  the  moral  power  to  act  in  con 
formity  to  it ;  and,  therefore,  we  are  culpable 
if  we  do  not  so  act ;  and,  for  the  same  reasori> 
when,  in  consequence  of  intellectual  derange 
ment,  we  are  unable  to  perceive  the  truth,  or, 
instead  of  it,  imagine  that  which  is  false  or 
has  BO  real  existence  or  foundation,  our  moral 
power  is,  or  should  be  presumed  to  be,  to  the 
same  extent  perverted  or  paralyzed  ;  and, 
therefore,  not  being,  in  that  respect,  free  and 
rational  moral  agents,  we  are  irresponsible  for 
the  acts  of  our  diseased  minds. 

But  if  it  be  not  universally  or  even  generally  j  with  a  character  for  "probity,  and  in  a  fit  of 
true  that  moral  derangement  or  inability  ac-  |  melancholy,  is  irresistibly  hurried  to  the  corn- 
companies  intellectual  insanity,  still  there  can  \  mission  of  a  horrid  deed,  and  those  wretches 
be'no  doubt  that  the  moral  pWcr  of  the  mo-  J  who,  hardened  by  a  life  of  crime,  commit  their 
uomaniac  is  not  always,  if  ever,  able  to  con-  j  enormities  with  perfect  deliberation  and  con 
trol  the  volcanic  eruptions  frequently  produced  ',  sciousness  of  their  nature  ?'' 
by  the  insane  delusions  of  a  disordered  intel- l-  I  will  read  no  more  on  the  subject  from  ele- 
lect.  On^this  subject  we  will  again  read  from  j  mentary  books,  but,  for  confirmation  of  all  I 
Ray,  p.  251,  the  following  appropriate  suggcs-  jhave  read  to  you  from  Ray,  I  refer  to  every 
tions  : — "Amid  the  rapid  and  tumultuous  j  modern  work 'on  insanity  and  medical  juris- 
successioii  of  feelings  that  rush  into  the  mind,  prudence,  aud  particularly  to  Prichard,  Es- 
the  reflective  powers  are  paralyzed,  and  his  quirol,  Beck,  and  Guv — between  all  of  whom 


late  trials  in  France)  for  the  purpose  of  puz 
zling  juries  and  defeating  the  ends  of  justice, 
but  plain  and  imvarnished  facts  as  they  oc 
curred  in  nature  ;  and  to  set  them  aside  with 
out  thorough  investigation,  as  unworthy  of  in 
fluencing  our  decisions,  indicates  any  thing 
rather  than  that  spirit  of  sober  and  indefa 
tigable  inquiry  which  should  characterise 
the  scieuce  of  jurisprudence.  We  need  have 
no  fear  that  the  truth  on  this  subject  will  not 
finally  prevail,  but  the  interests  of  humanity 
reqxiire  that  this  event  should  take  place  speed 
ily."  And  lastly,  on  p.  265  :— "  The  criminal 
act  for  which  its  subject  is  called  to  account, 
is  the  result  of  strong  and  sudden  impulse, 
opposed  to  his  natural  habits,  and  generally 
preceded  or  followed  by  some  derangement  of 
the  healthy  action  of  the  brain  or  other  organ. 
Where  is  the  similarity  between  this  man  who, 


movements  are  solely  the  result  of  a  blind, 


and  Ray  there  is  a  substantial  coincidence. 


THE  TRIAL  Off  D&  ABNER  BAKER. 


311 


And  adjudged  cases  are  still  more  authori 
tatively  confirmatory  of  the  same  just  and  con 
sistent  doctrines.  In  Hadfield's  case  the  only 
enquiry  was,. whether  he  was  lead  by  intellect 
ual  delusion  to  shoot  at  his  sovereign;  and,  en 
this  ground  alone,  he  was  acquitted  by  the 
jury  with  the  approval  of  the  presiding  judge, 
without  enquiring  whether  the  alleged  insan 
ity  being  established,  the  prisoner  should  be 
presumed,  nevertheless,  to  have  known  right 
from  wrong  generally,  or  even  in  that  particu 
lar  instance.  And  will  any  one  of  the  pro 
secuting  counsel  deny  that  this  is  a  leading 
case  which  has  been"  approved  by  the  most 
learned  jurists  ? 

On  an  indictment  for  murder,  as  already 
suggested,  Lord  Orford  was  acquitted  on  proof 
of  monomania  or  insane  delusion  as  to  acts  of 
hostility  supposed  to  have  been  committed 
against  him  by  the  person  whom  he  killed. 

In  that  case  Lord  Lyndhurst  told  the  jury 
they  ought  to  acquit  the  prisoner  if  satisfied 
"that  he  did  not  know,  when  he  committed 
the  act,  what  the  effect  of  it,  if  fatal,  would  be 
with  reference  to  the  crime  of  murder" — 5th 
Carrington  and  Payne  168.  There  was  no 
other  circumstance  tending  to  show  a  con 
sciousness  of  wrong  in  the  particular  act  (to 
which  the  instruction  restricted  the  enquiry) 
than  the  simple  fact  of  the  insane  delusion 
just  mentioned.  Yet  a  British  jury  very  wisely 
presumed,  from  [that  insanity  alone,  an  un 
consciousness  of  wrong  or  the  want  of  a  ra 
tional  free  will  ;  and  their  verdict  has  been 
approved  without  question,  so  far  as  I  know 
and  believe.  Nor,  as  I  believe,  has  any  per 
son,  since  the  trial  of  Hadfield,  been  hung  in 
England  for  murder,  by  an  impartial  tribunal, 
when  there  was  satisfactory  proof  that  the 
homicide  was  committed  under  the  influence 
of  monomania.  In  all  such  cases  (and  they 
have  been  various  and  numerous)  there  were 
cither  verdicts  of  not  guilty  or  royal  pardons. 
The  doctrine  recognized  in  Hadfield's  case 
has  never  been  overruled  or  disregarded  in 
England  ;  and  the  principle  of  that  case  is, 
"  that  a  person  is  not  criminally  responsible 
for  an  act  done  under  the  influence  of  insane 
delusion." 

The  last  of  the  prosecuting  counsel  who 
addressed  you,  read,  from  Notes  to  Starkie  on 
Evidence,  some  loose  dicta  of  one  or  two  nisi- 
prius  judges,  which  lie  seems  to  interpret  as 
importing  that  a  general  knowledge  of  good 
and  evil  might  be  sufficient  to  impart  legal 
criminality  to  a  homicide  committed  under 
the  influence  of  insane  delusions.  A  full  and 
perfect  consciousness  of  wrong  in  the  parti 
cular  act  is  what  was  intended,  as  the  history 
of  this  matter  and  the  instruction  in  the  case 
of  Orford  will  clearly  prove.  The  same  ju 
ridical  histoiy  will  prove  also  that  the  prac 
tical  doctrine,  without  deviation  since  1794, 
has  been  that  homicide  committed  under  the 
influence  of  particular  insanity,  is  not  crimi 
nal,  and  that  such  insanity  alone  authorises 
the  presumption,  prima  Jade  at  least,  that  the 
act  was  done  without  a  consciousness  of  its 
illegality,  or  without  moral  power  to  abstain. 


from  it.  And  we  have  a  right  to  presuma  that 
both  the  theory  and  practice  are  the  same  in 
our  own  Union. 

In  1835,  Lawrence  was  indicted  and  tried 
in  th,e  District  of  Columbia,  for  maliciously 
shooting  at  President  Jackson.  His  plea  was 
insane  delusion  as  to  the  President  only  ;  and, 
on  proof  of  facts  conducing  to  sustain  that  plea, 
the  Court  instructed  the  jury  to  regulate  their 
verdict  by  the  principles  of  the  case  of  Had 
field,  and  the  jury  returned  a  verdict  of  not 
guilty,  which  has  been  approved  as  right. 

In  1836,  Theodore  Wilson,  who  was  tried 
for  killing  his  wife  when  in  a  paroxysm  of 
particular  insanity,  was  acquitted  in  New 
York — the  Court  having  instructed  the  Jury 
to  acquit  if  they  believed  that  the  prisoner, 
when  he  committed  the  fatal  act,  "  was  not  of 
sound  memory  and  discretion." 

And  the  Legislature  of  New  York,  for  the 
purpose,  as  we  presume,  of  recognising  and 
conclusively  settling  the  principle  that  an  act 
done  under  the  influence  of  insanity  shall  not 
be  deemed  criminal,  has  enacted  that  "no  act 
done  by  a  person  in  a  state  of  insanity  can  be 
punished  as  an  offence."  This  might  be  liter 
ally  too  comprehensive.  But,  as  just  intimat 
ed,  we  should  understand  it  as  meaning  that 
an  act  influenced  by  insanity  should  not  be 
punished.  And,  thus  understood,  does  this 
statute  do  more  than  echo  the  announcement 
of  the  common  law — that  a  homicide  resulting 
from  unsoundness  of  mind  is  not  murder;  or, 
more  literally  in  the  language  of  that  law, 
that  the  murderer  is  a  person  of  "  sound  mind" 
who  slays  his  fellow  creature  without  legal 
authority  or  excuse.  When  insane  delusion 
prompts  the  person  so  afflicted  to  take  the  life 
of  the  object  of  delusion,  is  not  the  homicidal 
act  that  of  an  insane  being  V  Is  the  man- 
slayer,  as  to  that  act,  "  a  person  of  sound 
mind."  And.  consequently,  being,  as  he  must 
be  admitted  to  be,  of  unsound  mind,  can  he 
be  deemed  guilty  of  murder,  if  tried  by  this 
acknowledged  common  law  itself?  Surely, 
on  that  particular  subject,  he  should  not  be 
presumed  to  have  had  such  discretion  and  self 
control  as  an  infant  7  years  old. 

But  the  counsel,  who  last  addressed  you  on 
behalf  of  the  Commonwealth,  seemed  to  think 
that,  by  "  a  person  of  sound  mind,"  the  law 
intends  one  whose  mind  is  not  unsound  in 
all  respects  ?  After  what  1  have  already  said, 
a  further  answer  to  this  would  be  superfluous. 
He  appears  to  think  also,  however,  that  the 
doctrine  of  Hadrield'.s  case  is  overruled  br 
other  cases,  or  so  much  shaken  as  not  to  be 
entitled  to  much  respect  ;  and  he  has  alluded 
to  the  cases  of  Earl  Ferrers  and  of  Bellingham 
in  support  of  that  allegation.  But  this,  too, 
is  altogether  a  mistake.  The  case  of  Ferrers 
was  decided  before  that  of  Hadfield  ;  and 
cannot,  therefore,  have  overruled  or  shaken  it. 
Besides,  Earl  Ferrers  Avas  not  insane,  accord 
ing  to  my  conception  of  insanity  ;  because  all 
the  facts  which  incited  him  to  the  killing  for 
which  he  was  indicted,  actually  existed  as  he 
understood  them  to  exist,  and  were  not  the 
mere  figments  of  a  diseased  imagination — and, 


312 


MR.  ROBERTSON'S  SPEECH  ON 


consequently,  it  was  vindictive  passion,  and 
uot  insane  delusion,  that  instigated  him.  So 
Lord  Erskine  himself  argued  in  Hadfield's 
case  ;  and  by  that  argument  he  illustrated  the 
difference  between  furious  passion  and  intel 
lectual  delusion  or  insanity  ;  and  therefore, 
insisted,  as  I  reiterate,  that  Earl  Ferrers  was 
guilty  of  murder.  But,  in  the  same  argument 
he  distinctly  admitted  and  successfully  urged, 
in  behalf  of  Hadfield  that,  had  the  facts  been 
imaginary,  and  not  real,  then  the  Earl  was  so 
far  insane — and  that,  the  homicide  being  the 
offspring  of  that  insane  delusion,  he  was  not 
legally  guilty.  E"or  is  there  reason  to  infer 
that  the  jury  considered  Earl  Ferrers  as  in 
sane.  The  case,  then,  when  fully  and  rightly 
considered,  tends  to  strengthen,  rather  than  to 
weaken,  the  leading  principle  recognized  and 
defined  in  the  case  of  Hadfield. 

The  case  of Bellingham,  who  was  hung  for 
the  assassination  of  the  British  Premier,  Per- 
cival,  is  entitled  to  no  respect  or  influence  for 
any  purpose  ;  because  the  prisoner  was  tried, 
condemned,  and  executed  within  one  week 
after  he  shot  Mr.  Pcrcival,  and  was  refused 
time  to  send  across  the  British  Channel  for 
witnesses  to  prove  that  he  was  insane.  He 
was  hurried  to  sacrifice  in  a  whirlwind  of  ex 
citement  and  political  alarm — and  the  report 
of  the  trial  furnishes  no  reason  for  presuming 
that  he  was  insane — indeed  the  facts,  as 
proved,  when  tested  by  our  definition  of  legal 
vanity,  might  conduce  to  the  conclusion  that 
his  delusion  [was  in  his  deductions  from  ex 
isting  facts  rather  than  in  the  morbid  imagin 
ation  of  non-existing  facts — in  the  process 
rather  than  in  the  source  of  his  reasoning. 
And  if  this  had  been  his  actual  condition,  he 
was  not,  in  the  technical  sense,  an  insane  man. 
There  is  certainly  nothing  in  the  report  of  the 
case  indicating  mat  he  was  convicted  us  a 
monomaniac  on  the  ground,  nevertheless,  that 
he  had  a  general  knowledge  of  right  and  wrong, 
or  because  the  law  should  presume  a  conscious 
ness  of  wrong  in  the  particular  act  done  un 
less  the  contrary  had  been  clearly  proved — 
and  which,  however  true  it  may  have  been, 
would  have  been  impossible  in  any  other  way 
than  by  proof  of  his  particular  insanity  and 
of  the  fact  that  it  led  to  the  homicide. 

Besides,  after  this  conviction,  ike  monoma 
niac,  who  attempted  to  assassinate  the  Queen, 
was  acquitted  wit/tout  any  extrinsic  evidence  oj 
Ids  unconsciousness  of  (fainy  wrong. 

In  March,  1843,  a  British  jury,  under  the 
instructions  of  Ch.  Jus.  Tindal,  acquitted 
McNaghten  on  an  indictment  for  murder  in 
killing  Drummoud  under  the  influence  of  an 
insane  delusion  while  he  was  rational  on  other 
subjects.  And,  in  June  succeeding,  the  twelve 
Judges  of  England,  gave  a  written  opinion  on 
the  following  abstract  question  propounded 
by  the  HOUMJ  of  Lords  : — "  What  is  the  law 
respecting  alleged  crimes  committed  by  per 
sons  affected  with  insane  delusion  in  respect 
to  one  or  more  particular  subjects  or  persons  ; 
as,  for  instance,  where,  at  the  time  of  the  com 
mission  of  the  alledged  crime,  the  accused 


knew  he  was  acting  contrary  to  law,  but  did  the 
act  complained  of  with  a  view,  under  the  in 
fluence  of  insane  delusion,  of  redressing  or  , 
revenging  some  supposed  grievance  or  injury 
or  of  producing  some  supposed  public  bene 
fit  ?"  The  ^Judges  hesitated  to  express  an 
opinion,  because,  as  they  very  prudently  said, 
every  case  should  be  decided  on  its  own  pecu 
liar  facts,  and  because  also — in  assuming  that 
the  person,  though  laboring  under  an  insane 
delusion,  knew  that  he  was  doing  icronq — the 
question  virtually  answered  itself,  and  shewed 
that  the  act  was  not  an  insane  act.  But  they 
answered  the  question  ;  and  their  answer,  of 
course,  was,  on  the  facts  propounded,  if  they 
could  exist  consistently  with  physiological 
truth,  that  the  accused  would  not  be  legally  ex 
cusable.  But  they  did  not  intimate  that  in 
sane  delusion  on  a  particular  subject  should 
be  presumed  to  be  accompanied  with  a  perfect 
freedom  of  will  or  consciousness  of  wrong  in 
submitting  to  the  influence  of  the  delusion  : 
but,  as  I  think,  they  clearly  intimate  the  con 
trary.  They  say  that,  if  the  accused  labored 
under  no  other  unsoundness  or  defect  of  mind, 
or  will,  or  reason,  than  an  insane  delusion  as 
to  a  particular  fact — an  imagined  injury,  for 
example — then  he  shonld  be  tried  just  as  a 
rational  man  should  be,  conceding  the  ima 
gined  fact  to  be  true.  This  is  all  very  clear, 
and  as  reasonable  as  it  is  clear.  But  does  it 
imply  that  monomania  is  to  be  presumed,  un 
til  the  contrary  be  proved,  to  be  thus  restricted 
in  the  range  of  its  influence  ?  Certainly  not. 
It  only  means  that  if,  as  assumed  in  the  pro 
pounded  case,  the  accused  did,  in  fact,  know 
that  he  was  doing  wrong,  and  (as  should  have 
been  added)  had  the  moral  power  to  avoid  it, 
he  should  be  tried  on  the  concession  of  the 
truth  of  the  fact  his  morbid  imagination  had 
assumed  to  exist  and  his  peculiar  illusion 
should  entitle  him  to  no  greater  indulgence. 
And,  on  that  point,  the  Chief  Justice,  speak 
ing  for  himself  and  ten  of  his  associate?,  said 
"he  is  nevertheless  punishable  according  to 
the  nature  of  the  crime  committed,  if  he  knew 
at  the  time  of  committing  such  crime,  that  he 
was  acting  contrary  to  law."  jSTow,  if  a  gen 
eral  knowledge  of  right  and  wrong  imply  a 
consciousness  of  wrong  in  the  particular  in 
stance  of  insane  delusion  also,  why  did  the 
Judges  say  "if  lie  knew  that,  he  was  acting 
contrary  to  law  V"  They  moreover  say  that 
the  consciousness  of  wrong  must  be  "vin  re 
spect  to  the  very  act  with  which  he  was 
charged," 

In  this  case,  therefore,  we  find  nothing 
against  the  position  we  are  endeavouring  to 
maintain,  nor,  in  any  degree,  inconsistent, 
with  the  judicial  practice  ever  since  Hadfield  V 
trial;  but  much  in  confirmation  of  it.  And 
the  sustained  verdict  and  judgment;  of  ac 
quittal  in  the  case  cf  McNar/hten,  as  late  as 
1843 — is  itself  a  powerful  confirmation. 

I  now  feel  authorised  to  repeat  that  there  is 
no  precedent  in  the  criminal  jurisprudence  of 
England  since  1794  which  unsettles  the  prin 
ciple  then  settled  in  the  memorable  case  of 


THE  TLIAL  OF  DB,  ABNEB  BAKHB. 


SIS 


Hadfieldj  and  that,  on  the  contrary,  that  case 
has  been  made  authoritative  there  and  in  the 
United  States  also  by  repeated  practical  and 
judicial  recognitions.  !Nor  can  there  be  any 
doubt  that  the  principle  of  that  case  is  as  wt 
have  explained  it  to  be — that  is  that  homicide 
which  is  the  offspring  of  an  insane  delusion 
on  a  particular  subject  is  prima  facie,  not  mur 
der,  because  the  law  presumes  that  it  was  don 
without  legal  malice.  The  verdict  in  that  case 
was  doubtless  the  result  of  the  argument 
which  insisted  on  the  principle  just  stated, 
and  to  prove  this  to  you,  I  will  read  only  a 
fragment  of  that  argument,  by  Lord  Erskine 
It  is  that  portion  of  it  in  wnich  he  animad 
verted  on  the  acquittal  of  the  unfortunate  wo 
man  who  killed  Mr.  Errington  for  deserting 
her  after  cohabiting  with  her  for  years  in  i 
blessed  concubinage.  After  arguing  that  de 
lusion  as  to  facts,  for  the  supposed  existence  01 
which  there  was  no  evidence,  was  insanity — 
he  illustrated  this  conception  by  insisting  that, 
as  this  discarded  woman  acted  on  existing 
facts  and  not  on  such  as  were  the  phantasms 
of  a  morbid  brain,  she  was,  not  insane — and 
also  by  then  urging  the  following  considera 
tions — "  But  let  me  suppose  (ivhich  would  liken 
it  to  the  case  before  you,} — that  she  had  never 
cohabited  with  Mr.  Errington,  that  she  nevei 
had  children  by  him,  jand,  consequently,  that 
he  neither  had  nor  could  possibly  have  deserted 
or  injured  her.  Let  me  suppose,  in  short,  that 
she  had  never  seen  him  in  her  life,  but  that 
her  resentment  had  been  founded  on  the  mor 
bid  delusion  that  Mr.  Errington,  who  had  ne 
ver  seen  her,  had  been  the  author  of  all  her 
wrongs  and  sorrows,  and  that,  under  the  dis 
eased  impression,  she  had  shot  him.  If  that 
had  been  the  case,  gentlemen,  she  would  have 
been  acquitted  upon  the  opening,  and  BO 
Judge  would  have  sat  to  try  such  a  cause; 
the  act  itself  would  have  been  excessively 
characteristic  of  madness,  because,  being 
founded  on  nothing  existing,  it  could  not  have 
proceeded  from  malice,  which  the  law  requires 
to  be  charged  and  proved,  in  every  case  of 
murder,  as  the  foundation  of  the  conviction." 

Baron  Hume,  in  his  commentaries  on  the 
criminal  laws  of  Scotland — vol.  1,  p.  36 — af 
ter  vindicating,  with  great  power  and  on  con 
clusive  precedents  and  reasons,  the  doctrine 
we  are  maintaining,  concludes  in  the  follow 
ing  words  : — "  and,  though  the  person  may 
have  that  vestige  of  reason  which  may  enable 
him  to  answer  in  general  that  murder  is  a 
crime,  yet  if  he  cannot  distinguish  a  friend 
from  an  enemy,  or  a  benefit  from  an  injury, 
but  conceives  everything  about  him  to  be  the 
reverse  of  what  it  "really  is,  and  mistakes  the 
ideas  of  his  fancy  in  that  respect,  for  realities 
— those  remains  of  intellect  are  of  no  sort  of 
service  to  him,  in  the  government  of  his  ac 
tions,  in  enabling  him  to  form  a  judgment  as 
to  what  is  right  or  wrong  on  any  particular 
occasion." 

In   all   such   cases  acts    done  within   the 
sphere  and  under  the  influence  of  insane  de 
lusion  are  not  to  be  assumed  to  be  voluntary, 
in  the  rational  and  responsible  sense.    There 
40 


is  certainly  a  volition,  and  a  demonstration  of 
it;  but  it  may  be,  and  generally  i«,  an  animal 
will,  impelled  by  the  storms  of  passion  with 
out  the  guidance  of  right  reason's  compass, 
or  the  helm  of  moral  sense.  So  far  as  the  de 
lusion  extends,  he  is  the  mere  automaton  of 
it.  And  this  was  forcibly  illustrated  by  a 
criminal  trial  in  France  described  by  Georget- 
in  which,  under  a  jargon  of  incongruous  in 
structions,  such  as  the  Commonwealth's  coun 
sel  now  vindicate,  the  jury  found  specially 
that  the  accused  acted  voluntarily  and  with 
premeditation,  but  that  he  was  insane  at  the 
time  of  thus  acting  ?  And,  on  that  finding, 
he  was  discharged.  And  what  does  this 
prove  ?  Why,  tnat  the  Judge,  who,  notwith 
standing  his  silly  instructions,  was  compelled 
to  discharge  him,  was  of  opinion  that  the  ac 
cused  had  acted  voluntarily  and  premeditat- 
edly  just  as  the  tiger  does  when  he  devours 
the  innocent  and  unoffending  babe — from 
mere  brute  passion  or  appetite,  and  without 
reason  or  sound  moral  sentiment.  The  tiger 
knows  what  he  does,  is  actuated  by  motive, 
and  his  act  is  voluntary,  and,  if  you  please 
premeditated — but  still  the  knowledge,  the 
volition,  the  motive,  and  the  forethought  are 
those  only  of  au  irrational,  and,  therefore,  ir 
responsible  beast  of  the  forest.  So,  precisely, 
the  lunatic,  when  acting  under  the  dominion 
of  his  insanity,  knows  what  he  does,  is  influ 
enced  by  some  motive,  may  act  as  freely  as 
any  mere  animal  ever  can  act,  and  may  also 
have  predetermined  to  act— but  still,  as  to  all 
these  matters — being  deprived  of  the  preserv 
ing  light  of  reason  or  of  the  restraining  influ 
ence  of  moral  power,  he  is  not,  in  these  re 
spects,  what  God  made  him,  a  rational  and 
accountable  being.  So  the  French  Judge  de 
cided  ;  so  every  honest  and  intelligent  Judge 
would  decide  on  the  same  special  verdict,  and 
such  are  the  premeditation  and  voluntary 
action  of  mental  insanity. 

And  of  all  the  causes  or  effects  of  monoma 
nia,  jealousy  is  the  most  certain,  the  most 
common,  and  the  most  infuriating  and  ungov 
ernable.  It  is  a  lawless  monster — deaf  to  the 
voice  of  reason,  led  astray  by  delusion,  and 
tortured  with  sleepless,  hopeless,  reckless, 
agony.  Thompson's  description  of  it  is  as 
true  as  it  is  beautiful,  when,  after  portraying 
the  anxious  bliss  of  virtuous  and  confiding 
love,  he  says : — 

"  These  are  the  charming  agonies  of  love — 
But  should  jealousy  its  venom  once  diffuse, 
It  is  then  delightful  misery  no  more  ; 
But  agony  unmixed,  incessant  gall,  corroding 
Every  thought,  and  blasting  all  love's  para 
dise — 
Ye  fairy  prospects,  then,  ye  beds  of  roses, 

and  ye 

Bowers  of  joy,  farewell-    Ye  gleamings  of 
Departed  peace,  shine  out  your  last." 

If  sucli  be  the  effects  of  jealousy  on  the 
heart  of  a  sound  man,  what  law  can  prescribe 
rational  bounds  to  its  destructive  power  when 
t  is  the  monstrous  offspring  of  &  mind  ia 


314 


MR,  ROBERTSON'S  SPEECH 


ruins?  Who  shall  then,  say  that  it  has  a  shoot  him  on  sight  and  of  his  preparation  to  do 
moral  sense  or  ray  of  reason — or  can  imagine  so,  he  would  not  have  attempted  to  pass  his  fur- 
that  it  can  be  guided  by  the  one  or  made  to  j  nace  by  daylight  and  especially  without  any 
crouch  before  the  power  of  the  other  ?  No—  other  defensive  armor  then  a  small  pocket 
like  the  Blind  Giant,  it  strikes  in  the  dark,  is  pistol,  with  a  ball  but  little  larger  than  a  com 
as  dangerous  to  friends  as  to  foes — and  no  law,  j  mon  buck-shot — nor  would  he  have  intimated 
nor  fear,  can  stay  its  Briarian  hands.  i  to  Mrs.  White  on  the  way  his  determination  to 

*.~"i,~  T>_i '  i'f~  t i.  .•      _'1_J i.  i_  r.i if j 


When  the  infuriate  jealousy  of  an  insane 
man  impels  him  to  the  destruction  of  the  vic 
tim  of  his  delusion,  without  any  rational  mo 
tive  or  actual  wrong,  should  not  our  reason, 
as  well  as  charity,  ascribe  the  deed,  altogether 
to  insanity,  and  believe  that,  had  the  destroy 
er  been  perfectly  sound  and  rational,  he  would 
have  revolted  at  the  thought  of  such  a  mo 
tiveless  and  horrid  act,  or  never  would  have 
had  even  a  dreaming  thought  of  it  ?  Was  it 
not  an  act  of  insanity  ?  And  can  any  act  of 
insanity  be  punished  by  the  criminal  code  of 
this  or  any  other  just  and  enlightened  land  ? 

Now,  gentlemen,  I  think  that  I  have  a  right 
to  conclude  that  reason,  and  policy,  and  jus 
tice,  and  elementary  books,  and  adjudged 
cases  all  concur  in  establishing  the  legal  posi 
tion  for  which  I  am  contending — that  is,  if 
you  are  satisfied  that  the  accused  in  this  case 
was,  when  he  killed  Bates,  insane  as  to  him, 

and  that  the  killing  was  the  offspring  of  that  effort  to  take  the  life  of  Bates  when  he  ha'd 
insanity,  the  law  must  acquit  him  on  this  in-  various  opportunities  of  effecting  such  a  pur- 
dictment.  |  pose  without  much,  if  any  immediate  peril. 

But  in  a  paroxism  of  insane  jealousy,  he  had 


take  Bates'  life  for  his  conduct  to  himself  and 
wife.  The  reckless  and  almost  hopeless  act 
of  passing,  as  he  did,  and  of  shooting,  as  he 
did,  at  the  distance  of  18  feet,  when  he  must 
have  known  that,  if  he  failed  to  kill,  he  would 
certainly  have  been  killed  with  a  gun  shot 
from  Bates  or  some  of  his  slaves,  was  the  off 
spring  of  insanity.  Had  he  been  self-pos 
sessed,  he  would  either  have  avoided  that  per 
ilous  dilemma  or  beoii  prepared  to  meet  it 
more  prudently  and  on  more  equal  terms.  No 
rational  being  would  have  acted  as  he  did ; 
nor  ought  there  to  be  any  doubt  that,  had  there 
been  no  insane  delusion,  he  would  not,  that 
day,  have  shot  at  Bates,  as  he  did,  with  his 
little  pistol.  The  facts  which  he  believed  re 
specting  Bates'  cruel  conduct  to  his  own  wife 
(Baker's  sister,)  and  his  attempts  to  assassin 
ate  him,  whether  true  or  only  the  imaginings 
i  of  a  diseased  mind,  had  not  prompted  any 


And  can  one  of  you  doubt  that  the  killing  of 
Bates  was  either  justifiable  or  was  the  insane 
act  of  a  deranged  mind  ?  The  act  itself  prov 
ed  it;  because,  if  his  charges  were  false, 
there  was  no  rational  motive  for  his  hostility 


attempted  to  shoot  Bates  in  his  own  house  and 
in  the  presence  of  their  wives.  It  was,  then, 
insane  delusion  as  to  his  wife,  and  Bates'  im 
puted  connexion  with  her,  that  prompted  him 


to  Bates — no  other    probable   or  imaginable  !  to  seek  his  life.    And  if  he  were  insane  also 
reason  than  his  insane  conviction  that  Bates   as  to  Bates'  supposed  maltreatment  of  his  sis- 

1— '"N  ter  and  designs  on  his  own  life,  this  only 
aggravated  his  imagined  wrongs.  Having  re 
pudiated  his  wife  and  left  Kentucky,  he  had 
abandoned  his  paroxismal  designs  to  kill 
Bates.  But  returning  to  settle  his  affairs,  he 
was  excited,  by  his  delusions  and  by  the  ap 
prehension  that  Bates  meditated  his  destruc 
tion,  to  pass  heedlessly  within  the  range  of 
his  gun,  and  being,  on  the  first  sight  of  him, 
transported  with  ungovernable  fury,  he  in 
sanely  dismounted  and  fired  at  the  side  of 
Bates  as  he  sat  under  a  shelter  where  he  could 
not  rationally  have  expected  to  kill  him,  and 
where,  whether  he  hit  or  missed,  Bates  must 
have  instantly  seen  him  and  been  able  to  have 
killed  him  before  he  could  have  escaped.  Who 
can  doubt  that,  had  he  not  labored  under  in 
sane  delusions  and  been  impelled  by  ungov 
ernable  emotions  arising  from  them,  he  would 
not  then  have  thus  passed  and  dismounted,  or 
then,  if  ever,  have  shot  at  Bates  ?  And  who 
can  doubt,  therefore,  that,  whatever  cause  of 
complaint  or  apprehension  of  danger  he  may 
have  had,  the  killing,  as  it  occurred,  was  the 
offspring  of  insanity — the  insane  act  of  an  in 
sane  man  ? 

And,  under  all  these  circumstances,  will 
the  law  assume — or  can  you  presume — that 
the  accused  knew  that  he  was  doing  wrong, 
and  also  had  the  moral  power  to  avoid  it  ? 
Never,  never,  if  the  law  be  just  and  you  ra 
tional.  Does  it  appear  here  (as  in  the  moot 


had,  before  and  immediately  after  his  (Baker's) 
marriage,  plotted  his  assassination,  outrage 
ously  maltreated  his  sister,  (the  wife  of  Bates) 
and  basely  defiled  his  nuptial  bed,  and  ruined 
his  conjugal  peace,  happiness,  and  honor.  It 
is  demonstrated  also  by  the  simple  fact  that 
he  was  thus  insane  as  to  his  wife,  and  Bates' 
connexion  with  her,  and  that,  whilst  so  de 
ranged,  he  shot  him.  Would  it  be  possible 
for  you  to  believe  that,  had  he  never  been  thus 
irrational  or  deluded,  he  would  have  been, 
without  cause,  so  violently  inimical  to  his 
brother-in-law,  or  would,  in  the  first  instance, 
if  ever,  have  thought  of  taking  his  life,  and 
thus  bringing  on  himself  infamy  and  ruin — 
on  his  sister  widowhood — her  children  or 
phanage—and  all  his  kindred  such  multiform 
and  hopeless  sorrow  ? 

That  he  was  insane  when  he  shot  Bates 
there  can  be  no  rational  doubt.  While  at 
Knoxville,  whither  he  had  gone — while  on  his 
return — and  on  the  road  during  the  day  of  the 
homicide,  and  even  just  before  it  occurred — 
all  the  insane  delusions  which  had  previously 
agitated  him  seemed  to  haunt  his  mind  with 
as  much  force  and  vividness  as  ever.  This  is 
abundantly  proved  by  various  witnesses  ;  and 
moreover  there  is  intrinsic  proof  of  it — for  the 
physical  condition,  which  produced  those  de 
lusions,  still  continued  without  any  essential 
amelioration ;  and  had  he  been  perfectly  sane, 
after  what  he  had  heard  of  Bates'  threats  to 


THE  TRIAL  OF  DK.  ABNER  BAKEE. 


315 


case  on  which  the  12  Judges  of  England  ex 
pressed  an  opinion)  that  the  accused  knew 
that  he  was  violating  the  law,  was  actuated  by 
revenge,  and  acted  with  a  moral  free  will  and 
full  discretion  ?  Revenge  for  what  ?  For 
Bates'  imputed  conduct  ',to  his  wife,  and  de 
signs  on  the  life  of  the  accused  ?  Then  why 
had  he  not  attempted  to  kill  him  for  this  cause 
when  he  had  multiplied  opportunities  of  at 
tempting  it  without  personal  hazard  ?  ISTo,  it 
was  not  the  voluntary  vengeance  of  a  sane 
mind,  but  the  unavoidable  act  of  a  mind  dis 
eased  and  dethroned,  impelled  by  an  insane 
conviction  that  the  act  was  one  of  lawful  and 
righteous  self-defence  and  retribution.  Such, 
in  my  judgment,  is  the  deduction  of  enlight 
ened  reason,  and  the  presumption  of  rational 
and  well  established  law. 

But  not  only  will  the  law  presume  that  such 
an  act,  prompted  by  such  insane  delusion, 
was  committed  without  a  consciousness  that, 
under  all  its  imagined  as  well  as  actual  cir 
cumstances,  it  was  wrong,  or  without  the  moral 
power,  at  the  time,  to  avoid  it — but,  in  this 
case,  there  is  affirmative  proof  of  unconsci 
ousness  of  wrong,  and  also  of  moral  inability. 
The  accused  neither  attempted  to  escape,  nor 
manifested  any  contrition  or  alarm.  On  the 
contrary,  he  seemed  unusually  tranquil,  and 
self-satisfied — endeavoured  to  go  on  foot  to  the 
house  of  his  wife's  father,  whom  he  had  so 
much  outraged,  but,  missing  the  way,  went 
to  her  uncle's  ;  slept  there  all  night  peace 
fully,  narrated  all  the  facts  and  causes  in  a 
spirit  of  triumph  and  self-complacency,  asse 
verated  that  he  had  done  a  necessary  and  glo 
rious  deed — and  voluntarily  surrendered  him 
self  to  examining  Justices,  who,  upon  full 
examination,  discharged  him  on  the  ground  of 
insanity.  Then,  were  it  possible  for  you  to 
believe  that  an  insane  man,  when  actuated  by 
insanity,  might  be  conscious  that  he  is,  in  that 
particular  act,  doing  wrong,  and  might  have 
the  moral  power  to  refrain — still  you  have,  in 
this  case,  as  strong  evidence  as  could  exist  in 
any  case  to  satisfy  you  that  the  accused  hon 
estly  believed  that,  when  he  shot  Bates,  lie  did 
right  and  discharged  a  sacred  duty  to  himself, 
his  family  and  his  country- 

But,  as  previously  shown,  the  pica  of  insan 
ity  is  fortified  by  an  accidental  consideration 
which  has  seldom,  if  ever,  before  marked  ft 
case  of  homicide  by  au  insane  man.  The  ac 
cused  had  ample  cause  (had  he  been  perfectly 
rational)  to  apprehend,  as  he  doubtless  did, 
that,  if  lie  should  attempt  to  pass  the  furnace, 
when  Bates  was  there,  lie  would  be  in  immi 
nent  danger  of  being  shot.  He  might  have 
avoided  the  furnace,  or  passed  in  the  night. 
Had  he  been  rational  and  self-possessed  he 
would  have  done  so,  though  it  was  not  cer 
tainly  his  duty  to  leave  the  highway  or  skulk 
along  it  under  the  cover  of  night.  When,  on 
passing  the  chimney  of  the  furnace,  he  first 
saw  Bates  sitting  with  his  side  towards  him, 
he  had  good  reason  to  believe  that  Bates  would 
soon  see  him,  and  would,  as  soon  as  he  should 
see,  shoot  him  with  a  gun.  Then,  impelled, 


thus  far,  by  an  insane  mind,  he  was,  at  thii 
pregnant  crisis,  excited  by  resentment  at  the 
threats  of  Bates,  and  by  strong  apprehension 
that  his  own  life  was  in  imminent  peril.  And, 
if  these  facts  would  amount  almost,  if  not  al 
together,  to  a  legal  justification  in  the  case  of 
a  man  of  sound  mind,  what  irresistable  force 
must  they  have  exerted  over  a  shattered  mind, 
lacerated  with  imagined  wrongs  of  the  most 
aggravated  kind,  and  tortured  with  the  strong 
est  and  most  aggravating  passions  that  could 
ever  spring  from  insane  delusion?  And  who 
can  tell  how  completely  his  mind  may  have  been 
dethroned  on  such  an  occasion?  Was  there 
any  such  proximate  cause  of  excitement  in 
the  case  of  Hadfield,  or  Orford,  or  Wilson,  or 
McNaghten?  Or  could  a  clearer  or  more  con 
clusive  case  for  unhesitating  acquittal  on  the 
ground  of  monomania  ever  occur  or  be  imag 
ined? 

There  could  not  possibly  be  a  stronger  case 
than  this  for  the  prima  facie  presumption  of 
law,  as  well  as  the  satisfactory  deduction  of 
reason,  that  the  killing  was  the  offspring,  di 
rectly  or  remotely,  of  insane  delusion,  and 
was  without  a  consciousness  of  illegality  or 
moral  power,  at  the  time,  to  act  otherwise 
than  the  accused  did  act.  It  does  seem  to  me 
that,  if  this  be  not  satisfactorily  manifested  in 
this  case,  it  never  can  be  in  any  case  of  partic 
ular  insanity.  And,  therefore,  I  feel,  gentle 
men,  that  it  would  be  trifling  with  your  pa 
tience  and  intelligence  to  argue  this  matter 
with  more  minuteness  or  elaboration.  Con 
sequently,  I  will  now  leave  it,  as  it  is,  in  full 
confidence  that,  as  to  this,  you  must  be  perfect 
ly  satisfied. 

*  But  now  let  it  be  supposed  that  there  is 
neither  justification  nor  strong  mitigation  in 
the  case  of  a  sane  man,  and,  moreover  that 
the  law  does  not  presume,  prima  facie,  that  a 
a  homicide,  under  the  influence  of  insane  de 
lusion,  was  without  full  consciousness  of  wrong 
or  moral  power  to  avoid  it — still,  even  on  this 
hypothesis,  applying  the  rule  of  law  recog 
nized  by  the  twelve  judges  of  England — that 
is,  that  the  accused  shall  be  tried  as  if  the  facts, 
he  insanely  imagined,  were  true  as  he  believed 
them  to  be — would  you,  could  you,  dare  you 
convict  him  of  murder?  Let  us  put  the  case. 
Then  it  is  to  be  admitted  that  Bates  treated 
his  own  wife  as  Dr.  Baker  believed  he  did; 
that  he  had  conspired  with  his  own  slaves  to 
assassinate  the  Doctor,  and  had  made  attempts 
on  his  life;  that  ho  had  often  had  criminal 
connection  with  the  Doctor's  wife,  in  his  own 
(Bates')  house,  and  in  his  (the  Doctor's)  bed 
— and  then  add  the  undoubted  fact  that  Bates 
had  declared  that  he  would  shoot  the  Doctor, 
on  sight,  if  he  should  ever  return  to  Kentucky^ 
and  that  the  Doctor  had  good  cause  to  appre 
hend  that  this  would  be  attempted  as  he 
passed  the  furnace,  and,  that,  to  shoot  Bates, 
if  possible,  with  his  pistol  before  Bates  could 
draw  his  gun  on  him,  was  his  only  defensire 
expedient  for  avoiding  his  own  destruction 


S16 


MR.  ROBERTSON'S  SPEECH  OK 


while  in  the  act  of  passing  the  furnace.  Upon 
these  facts,  was  hi  guilty  of  murder?  To  de 
cide  that  he  was,  would  outrage  reason,  justice 


and  law. 

Then,  gentlemen,  we 


have,  as  we  think. 


sufficiently  shown,  1st.  That  the  accused,  if 
he  had  not  heen,  in  any  degree,  insane,  had 
strong  grounds  of  justification,  and  that,  at 
least,  his  case  is  reduced  below  the  grade  of 
murder;  2nd,  That  he  was  insane  as  to  Bates 
and  his  own  wife;  3d,  That  this  insane  delu 
sion  influenced  him  to  pass  the  furnace  as  he 
did,  and  was  either  the  predisposing  or  actua 
ting  cause  of  the  homicide:  4th,  That  the  law 
presumes  that  he  was  either  not  conscious  of 
doing  wrong  when  he  fired  his  pistol  at  Bates, 
or  had  not  the  moral  self-control  necessary  to 
enable  him  to  forbear;  5th,  That  there  is  strong 
affirmative  proof,  in  this  case,  of  the  absence 
of  such  consciousness  and  moral  ability;  and 
6th,  and  lastly,  that  evenjif  you  coiild,  neverthe 
less,  believe  that  the  accused  had  no  ground  of 
justification,  and  had  both  a  consciousness  that 
he  was  doing  wrong,  and  the  moral  power  to 
forbear,  still,  admitting,  as  you  then  would  be 
bound  to  do,  that  all  he  imagined  and  believed 
was  true — you  could  not  justly  or  legally 
bring  in  a  verdict  of  guilty  of  the  charge  of 
murder — but  ought  to  acquit  the  prisoner. 


him  to  the  Lunatic  Asylum  as  an  unfortunate 
victim  of  insanity.  In  the  event  of  an  acquit 
tal  his  friends  are  determined,  for  his  own 
welfare  and  the  security  of  themselves  and  the 
public,  to  place  him  in  the  Asylum  in  Lexing 
ton,  where  he  can  do  no  harm,  and  may  be 
finally  restored  to  health,  and  to  reason — to 
himse'lf,  and  to  them.  If,  in  these  last  hopes, 
they  should  be  disappointed,  and  his  case 
should  prove  to  be  immedicable,  still  it  would 
aiford  them  consolation  to  know  that  "murder 
er"  had  not  been  stamped  on  his  forehead  by 
his  country's  verdict!  And,  if  he  should  be 
restored,  he  might  yet  live  to  bless  them  and 
that  country  by  his  virtues  and  his  talents. 


They   look,  with  intense   anxiety, 
nattering  hope,  to  your  decision. 


but   with 
They  feel 

that  there  has  already  been  desolation  enough 
in  his  once  happy  and  united,  but  noAV  mourn 
ing  and  dismembered  family.  His  own  afflict 
ive  visitations  and  bereavements,  and  the 
melancholy  death  that  they  produced,  have 
filled,  to  the  brim,  his  grey-headed  and  pious 
father's  cup  of  earthly  sorrow.  Must  this  poor 
son's  ignominious  sacrifice  be  added  to  make 
that  cup  overflow  with  tears  and  with  blood? 
Can  the  public  security  be  promoted,  or  the 
public  welfare  advanced  by  hanging  a  crazy 
i — who,  as  a  man,  is  already  dead?  Does 


It  seems  to  us,  therefore,  that  you  cannot  [justice  demand — does  the  law  permit  it?  ^Vo 
doubt  that  he  is  not  legally  guilty  of  murder,  we  say — and  a  just  and  enlightened  country 
But  the  law,  in  its  wisdom  and  benignity,  tie-  j  will  echo,  no.  Then  at  "the  tomb  of  the  Cap- 
clares  that  if,  on  any  essential  point,  you  have  ulets,"  let  the  progress  of  premature  death  be 

now  stayed.  Let  us  dig  no  more  graves — 
but  rather  invite  all  parties  to  meet  over  the 
grave  of  Bates,  and  once  more,  become  friends. 


a  strong  rational  doubt  of  his  guilt,  you  must 
return  a  verdict  of  "not  guilty."  While  con 
ceding  this  in  general  terms,  the  counsel  for 
the  prosecution  attempted  to  evade  it,  by  in 
sisting  that  insanity  being  urged  as  an  excul 
patory  fact,  the  accused  cannot  escape,  unless 
he  shall  have  proved  it  beyond  a  rational 
doubt.  But,  gentlemen,  this  is  a  hyper-tech 
nical  perversion  that  would  nullify  the  admit- 
Ud  rule  of  law.  If  you  have  a  serious  and 
rational  doubt  of  the  prisoner's  guilt,  you  are 
bound  to  acquit  him.  This  is  not  denied. 
Then  if  you  have  such  doubt  as  to  any  one 
essential  element  of  his  guilt,  can  it  be  true 
that  you  have  no  doubt  that  he  is  guilty  and 
ought  to  be  hung?  And  if  you  had  perplexing 
doubt  whether  the  killing  was  the  act  of  an 
insane  mind,  must  you  not,  to  the  same  extent, 
and  in  the  same  degree,  doubt  his  legal  guilt? 
I  affirm,  therefore,  that  if  you  have  a  legal 
doubt,  as  to  any  point  or  fact  essential  to  guilt, 
your  oaths  require  you  to  acquit.  Looking 
impartially  at  the  facts  and  intelligently  sit 
the  law,  can  any  one  of  you,  on  the  solemn 
oaths  you  have  taken,  say  that  you  have  no 
rational  doubt  of  the  prisoner's  guilt  on  any  ma 
terial  fact  or  constituent  element  of  guilt  in 


law?    We  hope  not — we  presume  not. 
"not  guilty'9  is  the  verdict. 


Then 


I  nmit  now  close  the  argument  in  defence 


of  tht  accused. 

doom  forever. 

him  to  the  gallows  as  a  criminal)  or  will  send 


Your  rerdict  may  seal  his 
Tour  decision  may  consign 


Gentlemen,  I  came  here  to  heal,  not  to  wound 
— to  defend  a  guiltless  man,  and  restore  peace 
— not  to  rescue  tbe  guilty  and  inflame  unfreind- 
ly  feelings  that  have  already  been  too  much 
exasperated.  And  if  I  should  be  an  humble 
instrument  in  effecting  these  desirable  ends,  1 
shall  be  grateful  for  the  blessing  of  being 
prompted  to  the  benevolent  mission.  But 
these  objects  can  be  effected  only  by  the  ac 
quittal  of  the  accused.  His  conviction  can 
add  nothing  to  the  happiness  of  his  widowed 
sister.  His  death  would  not  restore  to  her 
the  husband  whom  his  fatal  phrenzy  bore  from 
her  bosom.  Nor  could  it  heal  the  wound  his 
insanity  has  made  on  his  innocent  wife  and  her 
excellent  family.  His  conviction  might  falsi 
fy  his  plea  of  insanity,  and  thus  tempt  a  cen 
sorious  world  to  suspect  that,  being  rational 
when  he  charged  her  with  infidelity  and  de 
serted  her,  he  had  some  cause  for  the  charges 
and  desertion.  And,  in  this  way,  her  charac 
ter  and  the  memory  of  Bates  might  unjustly 
suffer.  But  your  acquittal  of  him  on  the 
ground  of  insanity,  would  put  the  seal  of  de 
lusion  and  falsehood  on  all  his  suspicions  and 
accusations,  and  thus  rescue  his  innocent  and 
injured  wife,  surround  her  with  universal  sym 
pathy  and  confidence,  and  relieve  the  character 
of  Bates  from  obloquy  and  suspicion.  And 
,  too,  there  would  no  longer  be  any  cause 


THE  TRIAL  OF  DR.  ABNER  BAKER. 


311 


for  the  distrust  and  non-intercourse  of  the 
members  of  these  alienated  and  distracted 
households.  Of  all  his  sisters,  Mrs.  Bates 
should  be  the  most  anxious  for  his  acquittal. 
And  the  venerable  father,  who  watched  over 
his  infancy,  and  now  mourns  over  his  fallen 
condition,  should  not  pray  more  fervently  for 
his  aequittal  than  the  indignant  father  of  his 
outraged  wife.  The  only  thing  that  can  re 
instate  her  perfectly  and  restore  her  to  her  un 
fortunate  husband,  is  a  verdict  of  not  guilty 
on  the  ground  that  his  conduct  to  her  was  so 
destitute  of  any  cause  to  excuse  it  as  to  prove 
that  he  was  a  madman. 

You  have,  gentlemen,  a  singularly  solemn 
and  important  duty  to  perform.  This  is  the 
most  interesting  and  eventful  case  I  have 
known  in  Kentucky.  It  will  be  a  leading 
case  in  the  criminal  jurisprudence  of  the 
West.  It  involves  principles  as  important  as 
its  facts  are  novel.  And  not  only  the  safe 
ty  of  the  accused,  but  public  justice  and  secu 
rity  also,  may  depend,  in  no  slight  degree,  on 
your  proper  understanding  of  those  principles 
and  right  application  of  those  facts. 

The  case  is,  in  my  judgment,  altogether 
full  and  perfect  in  all  its  features;  and  there 
is  none  on  record  that  can  afford  a  more  com 
plete  and  useful  precedent  on  the  law  and  the 
facts  of  insanity  in  their  criminal  bearing. 

I  have  defended  the  accused  fairly,  candidly, 
and  I  trust  fully.  I  have  made  no  appeal  to 
your  fears  or  your  hopes — your  passions  or 
your  prejudices.  I  have  uttered  nothing  that 
I  do  not  believe;  have  descended  to  no  petti 
fogging  artifice — but  have,  throughout,  en 
deavored  to  maintain  truth,  the  law's  integrity, 
and  my  own  professional  honor.  If  you  err,  I 
shall  feel  guiltless.  If  my  client  fall,  I  shall 
still  feel  that,  though  others  might  have  defen 
ded  him  more  ably,  none  could  have  done  it 
more  faithfully.  And,  whatever  may  result 
from  your  verdict,  to  him  or  to  others,  now  or 
hereafter,  I  shall  enjoy  the  comfort  of  the  per 


suasion  that  I  have  honeitly  vindicated  hi 
rights,  the  wisdom  of  the  law,  and  the  inter 
ests  of  my  country. 

Upon  you,  then,  gentlemen,  rests  the  re 
sponsibility  of  a  just  administration  of  the 
law  in  this  great  cause.  And,  whatever  shall 
be  your  decision,  let  it  be  impartial,  conscien 
tious,  and  fearless.  I  am  sure  that  none  of 
you  can  thirst  for  this  man's  blood,  or  could 
derive  any  pleasure  from  his  condemnation. 
And  allow  me  to  add  that,  in  my  opinion, 
neither  your  own  consciences,  nor  enlightened 
public  opinion,  nor  even  the  feelings  and  more 
dispassionate  judgments  of  the  now  excited 
and  persevering  prosecutors  can,  in  after 
times,  approve  the  condemnation  and  sacrifice 
of  this  unfortunate  prisoner.  To  hang  him — 
the  mournful  catastrophe  being  produced  as,  if 
it  ensue,  I  believe  it  will  have  been  chiefly 
produced,  by  the  local  influence,  and  extraor 
dinary  exertions  of  that  opulent  and  multitu 
dinous  band  of  prosecutors — will,  in  my  hum 
ble  judgment,  excite  future  remorse  in  their 
bosoms  and  reflect  reproach  on  the  proud  and 
spotless  State  of  Kentucky. 

I  must  do  you  the  justice  to  avow,  in  perfect 
candor,  that  your  prudent  deportment,  so  far 
as  I  have  heard  or  observed,  during  this  trial, 
absolves  you  from  any  imputation  of  conscious 
ly  yielding  to  any  such  influences.  But  you 
know  that  unusual  means  of  conviction  have 
been  employed,  and  that  general  excitement 
and  delusion  have  been  produced;  and  I  know 
that  they  are  contagious  and  difficult  to  escape 
or  subdue.  I  trust  that  your  verdict  will  be 
an  honest  one — and  I  hope  that  it  will  be  im 
partial  and  just.  If  it  shall  acquit  the  accused, 
I  believe  that  it  will  tranquilize  your  bosoms, 
hush  the  tongue  of  complaint,  and  extract 
from  the  tooth  of  calumny  all  its  poison.  And 
I  cannot  doubt  that  a  verdict  of  "Not  Guilty" 
will  be  sustained  by  the  law — approved  on 
earth — and  ratified  in  Heaven. 


PRELECTION. 


During  the  winter  of  1849,  the  Legislature  of  Kentucky  so  far  modi 
fied  the  law  of  1833  interdicting  the  importation  of  Slaves  as  to  allow 
citizens  of  the  State  to  import  them  for  their  own  use.  Against  that 
modification,  operating  as  a  virtual  repeal  of  the  law  of  1833,  Mr. 
Robertson,  then  a  member  from  Fayette,  made  the  following  speech. 

On  his  return  home,  solicited  by  persons  of  all  parties  and  persuasions 
in  his  county,  to  become  a  candidate  for  the  Convention  called  to  re 
model  the  State  Constitution,  he  finally  allowed  himself  to  be  announced 
as  a  candidate,  with  every  prospect  of  being  elected  by  genral  consent. 
But  shortly  afterwards,  the  agitation  of  the  question  of  emancipation, 
became  so  all-absorbing  as  to  induce  most  of  the  electors  in  Fayette  to 
organize  themselves  into  two  BELLIGERENT  parties — "EMANCIPATION"  and 
ULTRA  "PRO-SLAVERY" — EACH  NOMINATING  AND  PLEDGING  ITS  MEMBERS  TO  SUPPORT 

A  COALITION  TICKET,  COMPOSED    OF    ONE  WlIIG  AND    ONE  DEMOCRAT the  COUnty 

being  entitled  to  two  members  in  the  Convention.  Mr.  R.  could  have 
been  on  either  of  the  Tickets.  But,  unwilling  either  to  countenance  a 
premature  and  suicidal  movement  for  emancipation,  or  to  surrender  his 
non-importation  principles  and  co-operate  with  EXTREME  AND  UNREASONA 
BLE  PRO-SLAVERYISM.  he  refused  to  sanction  either  coalition,  and  denounced 
both  of  them  as  unnecessary,  unwise,  and  tending  to  licentious  and  de 
structive  results. 

A  majority  of  the  people  of  the  county,  thus  committed,  became  exci 
ted  by  the  canvass  to  an  extraordinary  and  almost  stultifying  degree. 
Mr.  R.  was,  CONSEQUENTLY,  not  elected,  but  was  beaten  by  a  DEMOCRAT  IN 
THE  CITADEL  OF  WniGGERY — even  though  there  can  be  scarcely  a  doubt 
that  a  large  majority  of  the  voters  concurred  with  him  in  his  Constitu 
tional  aims  and  principles.  In  addition  to  the  following  speech, 
other  addresses  made  by  him  are  also  herein  republished,  to  show  the 
general  character  of  those  aims  and  principles,  and  his  prediction  of  the 
consequences  which  would  result  to  conservatism  from  SUCH  AGITATIONS 
AND  COALITIONS.  And  did  not  these  consequences  follow? 

During  that  stormy  canvass  so  morbid  were  the  feelings  of  some  pro- 
slavery  men,  as  to  lead  a  few  into  the  delusion  that  Mr.  R.  was  inclined 
to  abolitionism.  And  even  ever  since  that  election,  the  vague  suspicion 
thus  uttered,  fortified  by  the  unexplained  fact  of  his  defeat  by  the  Ticket 
that  triumphed,  has  induced  some  few  blockheads  to  INSINUATE  that  Mr.  R. 
is  tainted  with  SOME  SORT  of  anti-slavery  DISEASE.  Let  all  he  ever  said,  or 
wrote,  or  did,  on  the  subject  of  slavery,  test  his  principles — whether  right 
or  wrong. 


MR.  ROBERTSON'S  SPEECH- 


Speech  of  Mr.    George   Robertson,  of  Fayette,  \  assembled  in  campus  martins,  or   elsewhere 
in    the    House    of    Representatives  of  the  j  unsafe  legislators.     Such  assemblages  would 
Kentucky  Ledislatnre,  on  the  bill  to  modify  the  \  be  so  liable   to  the  contagion  of  tumultuary 


law  of  1833,  prohibiting  the  importation  of 

Slaves. 

Mr.  R.  observed,  that  his  present  condition 
of  deranged  health  and  oppressed  lungs  would 
not  allow  him  to  hope  that  ho  should  be  able,  by 


passions,  and  so  inconsiderate,  irresponsible 
and  head-long  in  legislation,  as  to  allow  no  ra 
tional  hope  of  consistency,  moderation  or  con 
servatism  in  their  legislative  acts.  To  insure 
the  prevalence  of  reason  over  passion,  in  the 


anything  he  could  now  say,  to  compensate  the  enactment  of  laws,  our  constitutions  have  all 
committee  for  its  courtesy  in  adjourning  over  !  wisely  organized  representative  departments 
to  hear  him  on  this  interesting  occasion;  but  j  for  legislation.  By  our  own  State  Constitu- 
his  position  on  the  Judiciary  committee,  which  j  tion,  the  people  entitled  to  suffrage  have  the 
reported  against  the  bill  under  consideration,  j  right  to  select  the  most  enlightened,  firm  and 
and  his,  perhaps  peculiar,  and  certainly  very  patriotic  representatives  to  make  laws  for  the 
anxious  feeling  respecting  its  destiny,  would  j  Commonwealth.  Those  representatives,  not 
not  leave  him  the  choice  of  entire  silence  j  too  multitudinous  for  a  proper  sense  of  indi- 
whilst  its  fate  remains  uncertain.  j  vidual  responsibility  and  grave  and  dispassion- 

We  are,  this  day,  said  he,  legislating,  not !  ate  deliberation,  assemble  in  the  Capitol  for 
for  ourselves  only,  but  for  our  children — not  i  consulting  together,  obtaining  correct  inform- 
for  this  generation  merely,  but  for  posterity —  I  ation,  reasoning  with  one  another,  and  finally 
not  for  Kentucky  alone,  but  possibly  for  our  agreeing,  after  such  intercommunication,  coun- 
glorious  Union.  Hence,  he  must  be  allowed  sel,  and  mutual  enlightenment,  on  such  meas- 
to  say,  that  he  was  surprised  and  concerned  to  i  iires  as  will,  in  their  honest  judgments,  pro- 
hear,  as  he  had  heard,  from  more  than  two  mote  the  general  welfare.  There  is  no  dan- 
members  already,  that,  whatever  might  be  ger  that  the  popular  sentiment,  and  even  pas- 
their  own  opinions — even  though,  as  might  be  j  sion,  right  or  wrong,  will  not  have  sufficient 
inferred,  they  believed  the  passage  of  the  bill ;  influence;  the  only  danger  is,  that  it  will  have 
would  operate  disastrously  to  ourselves,  and  i  too  much.  If  the  local  feeling,  however 
to  those  who  shall  come  after  us  for  genera-  j  ephemeral  or  unreasonable,  should  control  the 
tions  to  come — yet  they  feel  bound  to  vote  for  j  enlightened  and  dispassionate  convictions  of 
it,  because  they  think  that  a  majority  of  their  i  the  representative,  then  the  very  same  elements 
more  immediate  constituents  are  in  favor  of  that  incapacitate  the  mass  of  constituency  for 
some  such  legislation.  Sir,  said  he,  I  could  wholesome  legislation,  do  virtually  legislate 


neither  thus  feel  nor  thus  act.  The  opinions 
of  the  voters  of  Fayette,  I  neither  know  nor 
have  sought  to  learn — I  know  my  own  convic 
tions  of  duty  to  my  oath,  to  my  country, 


in  defiance  of  the  judgments  of  the  represen 
tative  body,  and  notwithstanding  all  the  pre 
cautions  of  our  Constitution  for  preventing 
any  other  enactment  than  such  as  may  be  the 


and  to  my  children — and  that  is  enough  for  '  offspring  of  reason  and  deliberation, 
me.  He  felt,  he  said,  responsible,  not  alone  j  When  any  portion  of  the  people  send  a  proxy 
to  the  freemen  of  his  county  on  this  subject,  to  consult  and  to  reason,  and  to  be  reasoned 
but  responsible  to  his  own  conscience,  to  all  j  with,  concerning  the  common  good,  if  that 


Kentucky  now  and  hereafter,  and  to  the  God 
of  the  Universe.  The  opinions  of  a  majority 
of  those  who  elected  him  could  not  absolve 
him  from  that  more  sacred  and  comprehensive 
responsibility.  He  hoped,  and  was  disposed 
to  believe,  that  those  opinions  harmonized 
with  his  own.  But,  however  that  might  be, 
he  could  not,  on  such  an  occasion  as  this,  re 
cord,  for  the  inspection  of  his  countrymen  and 
his  posterity,  as  his  opinion,  that  which  was 
the  direct  opposite  of  his  clear  conviction  of 
truth  and  of  duty.  The  philosophy  of  the 
great  American  principle  of  representative 
democracy  seems  to  be  often  misunderstood 
and  perverted.  The  mass  of  the  people,  how- 
eyer  virtuous  and  enlightened,  would  be,  when 


proxy  be  convinced,  by  facts  and  arguments 
elicited  in  legislative  council,  that  his  country's 
interest  requires  him  to  vote  for  or  against  any 
proposed  measure,  those  who  deputed  him 
ought  to  acquiesce,  because  they  sent  him  under 
the  Constitution  for  that  very  purpose.  In  or- 
ganzing  the  principle  of  representation,  the  chief 
object  of  the  Constitution  was  to  secrete, 
through  the  constituted  organs,  the  popular 
sentiments,  and  thus  rectify,  and,  as  far  as 
possible,  crystalize  the  indigested  and  too  often 
turbid  elements  of  uBCOunselled  popular  de 
cision.  Why  commanicate  to  a  member  in  this 
hall  new  facts — why  address  to  his  judgment 
or  his  patriotism  arguments  to  convince 
him?  Only  because  we  all  expect  that,  if  he  be 


320 


ME.  ROBERTSON'S  SPBBCH  ON 


convinced  by  these  facts  and  arguments,  lie 
will  vote  according  to  that  conviction.  But, 
if  he  must  not  do  this,  all  those  facts  and  ar 
guments  are  thrown  away,  and  should  have 
been  addressed,  not  to  him,  a  petrified  statue, 
but  to  those  who  sent  him.  We  should  do 
here  as  we  think  they  would  or  ought  to  do, 
if  they  were  here  and  heard  all  we  have 
heard. 

Mr.  Chairman,  said  Mr.  R.,  on  this  floor, 
Kentucky  is  my  constituency — and  my  instruc 
tors  here,  on  such  a  subject  as  that  now  before 


being  imbedded  in  the  Constitution  with  a 
sanction  which  would  secure  it  from  evasion. 
Negro  slavery  was  introduced  into  South 
America  for  the  benevolent  purpose  of  rescu 
ing,  from  oppressive  servitude  and  final  exter 
mination,  the  more  effeminate  Indian  abor 
igines.  Foreign  cupidity  and  regal  power 
first  imported  it  into  the  Anglo-American 
Colonies,  and  fastened  it  on  Virginia  against 
her  will.  In  her  declaration  of  Independence , 
in  1776,  she  charged  the  King  of  England 
with  cruel  injustice  in  nullifying,  by  Koyal 


us,  are  the  opinions  and  interests  of  my  whole  j  vetoes,   her  colonial  enactments  interdicting 


State,  the  suggestions  of  my  own  conscience, 
and  the  convictions  of  my  own  judgment.  Under 
these  guides,  I  have  always  acted  in  my  legis 
lative  career;  and  though,  while  thus  acting 
un  Jer  all  these  sanctions,  I  have  often  given 
votes  which  I  apprehended  would,  for  a  sea 
son,  be  unpopular,  my  course  has,  in  every  in 
stance,  been  finally  approved,  and,  so  far  as  I 
know,  has  n«ver  been  rebuked.  And,  sir, 
when  we  are  right,  and  have  firmness  proper 
ly  to  maintain  it,  we  need  not  fear  that  our 
constituents  will  long  condemn  us.  We  un 
derrate  them  when  we  suppose  that  they  will 
not,  sooner  or  later,  be  right  also.  And  if, 
on  the  eventful  subject  now  before  us,  we  act 
as  our  own  matured  judgments  of  our  duty  to 
our  whole  country  shall  dictate,  we  will  secure, 
not  only  the  public  approbation,  but  that 
which  is  even  more  grateful  to  the  patriotic 
statesman,  the  approval  of  our  own  consciences, 
now  and  ferever. 

Hoping  that  every  member  would,  under 
a  proper  sense  of  all  his  responsibilities,  ex 
press  by  his  vote  the  conclusion  of  his  own 
reason,  he  would,  said  Mr.  E.,  proceed  in  as 
summary  a  form  as  he  could,  to  address,  to 
the  understandings  of  the  members  present, 
some  reasons  to  show  why  this  bill  ought  not 
to  pass;  and,  in  attempting  this  task,  he  in 
voked  the  careful  attention  and  candid  con 
sideration  of  all  present. 

The  programme  of  his  argument,  said  Mr. 
B.,  would  be  to  offer,  in  a  condensed  form, 
some  reasons  to  show:  1st,  That  this  bill,  if 
enacted,  would  operate  as  a  virtual,  practical, 
total  repeal  of  the  non-importation  law  of  1833. 
2nd,  That  the  act  of  1833  was  wise  in  its  pur 
pose,  and  has  been  beneficent  in  its  results. 
3rd,  That  the  present  crisis  is  uupropitious  for 
a  repeal  of  the  act  of  1833,  or  any  essential 
modification  of  it;  and  moreover,  any  such 
movement  now  is  pregnant  with  unprofitable 
4  commotion,  and  with  other  consequences  which 
'must  greatly  impair,  perhaps  utterly  destroy, 
the  conservative  influence  now  possessed  by 
Kentucky  in  the  Union — and  the  preservation 
of  which  influence,  unimpaired,  may  by  ne 
cessary  to  save  the  peace  and  integrity  of  that 
Union;  and  4th,  That  instead  of  relaxing  the 
policy  of  the  act  of  1833,  the  interest  of  the 
Commonwealth  and  its  prospective  glory,  re 
quire  that  non-importation  of  slaves  should 
bo  mado  fundamental  and  inviolable,  by 


the  importation  of  negroes;  and,  in  1778,  she 
enacted  a  statute  prohibiting  further  importa 
tion  "by  sea  or  by  land,"  except  by  immigrants 
from  other  confederate  States,  and  made  the 
interdict  effectual,  not  by  denouncing  high 
pecuniary  penalties  merely,  but  by  also  pro 


viding    that    any  slave, 
should  be  ipso  facto  free. 


illegally    imported, 
Under  the  auspices 


of  that  conservative  law,  Kentucky  was  born 
and  grew  to  manhood;  and,  until  after  the 
adoption  of  her  first  Constitution,  not  even  a 
citizen  could  lawfully  bring  within  her  borders 
a  slave  bought  beyond  them.  By  a  legislative 
act  of  1794,  the  Virginia  act  of  1778  was  re 
laxed  so  as  to  legalize  importations  of  slaves 
from  other  States,  by  citizens  of  Kentucky  for 
their  own  use;  and,  with  some  slight  modifi 
cations,  the  act  of  1794  was  re-enacted  in 
1815,  and  continued  in  operation  until  it  was 
supplanted  by  the  more  comprehensive  enact 
ment  of  1833,  which  revived  the  prohibitions  of 
the  act  of  1778,  but  unfortunately  left  them 
without  any  other  than  a  pecuniary  sanction, 
which  is  not  easily  enforced,  and  therefore  has 
had  but  little  influence  on  the  mercenary  and 
unscrupulous. 

Thus  it  may  be  clearly  perceived,  that  the 
characteristic  difference  between  the  act  of 
1815,  and  that  of  1833,  is  just  this,  and  only 
this — that  the  former  permitted  citizens  of 
Kentucky  to  buy  and  import  slaves  for  their 
own  use,  and  the  latter  forbids  all  such  pur 
chase  and  importation;  and  it  will  be  seen, 
also,  that  these  acts  are  as  different  in  purpose 
and  effect,  as  they  are  in  the  extent  of  their 
application;  for  whilst  the  act  of  1815  contem 
plated  an  increase  of  slaves  by  accession  from 
abroad — and  the  effect  of  it  was  a  great  aug 
mentation  from  that  source — the  act  of  1833 
intended  to  prevent  any  such  accession,  and, 
as  far  as  it  has  operated,  has  had  that  salutary 
effect.  Then,  as  these  enactments  are  thus 
radically  contradistinguished,  all  who  approve 
the  act  of  1533,  must  approve  it  for  those 
features  which  distinguish  it  from  the  act  of 
1815,  and  which  constitute  and  identify  it  as 
"the  act  of  1833."  For  this  reason  the  act  of 
1836  repealed  that  of  1815;  and,  for  the  same 
reason,  the  restoration  of  the  act  of  1815  will 
repeal  that  of  1833.  For  all  characteristic 
purposes  of  identity,  the  bill  under  consider 
ation,  and  the  act  of  1815,  are  the  same. 
The  bill,  if  it  shall  become  a  law,  will,  there- 


THE  BILL  TO  MODIFY  THE  LAW  OP  1335. 


fore,  restore  the  act  of  1815;  and  of  course 
will  operate  as  a  total  repeal  of  the  act  of 
1833,  by  repudiating  its  peculiar  policy,  and 
restoring  that  of  1794  and  1815. 

But  had  the  act  of  1833  been  the  only  law 
erer  enacted  for  prohibiting  the  importation  of 
slaves,  the  bill  would  operate  as  a  virtual  and 
practical  repeal  of  it.  An  unrestricted  right 
in  all  persons  to  bring  to,  and  sell  in  Kentucky, 
foreign  slaves,  would  not  increase  the  number 
of  slaves  here  beyond  the  domestic  demand — 
the  supply  would  rarely,  if  ever,  exceed  the 
demand.  Slaves  would  not  be  imported  for 
sale  in  Kentucky,  unless  persons  here  would 
buy  them  for  use.  And  it  is  not  material 
whether  the  citizen  buy  here  from  a  trader, 
or  whether  he  go,  or  employs  another  to  go  to 
some  other  State  and  buy  and  import  for  his 
own  use;  as  long  as  he  wants  an  additional 
slave,  has  the  means  conveniently  to  buy,  and 
can  purchase  out  of  Kentucky,  for  a  less  price 
than  in  it,  he  will  import  directly  or  indirectly. 

It  is  equally  evident  that,  when  citizens 
either  want  no  more  slaves,  or  have  not  the 
means  to  purchase  more,  or  can  buy  cheaper 
here  than  elsewhere,  slaves  will  not  be  import 
ed  for  sale  in  Kentucky.  Besides  a  practical 
acquaintance  with  the  ways  of  mercenary 
men,  and  with  the  history  of  importations  of 
slaves,  will  leave  but  little,  if  any,  doubt  that, 
by  various  devices,  the  prohibition  of  importa 
tion  for  commerce  eo  nomine  will  be  evaded  and 
that  Slaves,  some  how  or  other,  will  be  imported 
as  long  as  profit  can  be  made  by  the  importa 
tion;  and  no  mere  penal  sanction,  as  history 
proves,  will  check  the  tide. 

This,  said  he,  is  not  only  probable  a  priori, 
but  is  demonstrated  by  the  practical  nullity  of 
the  acts  of  1794  and  1815.  These  enactments 
did  not  curtail  importations  of  slaves.  This  is 
proved  by  the  ratio  of  increase  during  the  ex 
istence  of  these  statutes.  And  this  unerring 
experience  of  the  past  prompted  the  enactment 
of  1833.  Then,  as  the  act  of  1815  did  not 
curtail  importations  for  merchandise,  can 
we  go  back  .to  that  act,  and,  with  a  grave 
countenance,  say  we  have  not  repealed  the 
act  of  1833,  virtually,  practically,  totally?  No, 
must  be  the  answer  of  every  candid  and  ra 
tional  man.  Then  let  no  member  repeat  that 
he  is  for  this  bill  for  the  purpose  of  upholding 
the  law  of  1833 — let  none  such  say  that  he  is 
a  friend  of  that  act:  By  the  bill  he  supports 
he  knocks  it  in  the  head.  One  thing,  at  least, 
cannot  be  disguised,  and  that  is,  that  every 
pro-slavery  member,  and  every  one  who  de 
sires  an  increase  of  slaves  in  Kentucky  is  an 
advocate  of  this  bill;  and  that  every  member 
who  does  not  desire  the  perpetuation  of  slaveiy, 
or  who  is  opposed  to  the  augmentation  of  the 
number  of  slaves  and  a  deterioration  of  their 
quality  is  in  favor  of  the  act  of  1833,  and 
against  the  bill. 

The  act  of  1815,  as  well  as  that  of  1794, 
was  substantially  the  same  *§  the  bill  now 
41 


tinder  consideration.  Each  of  those  statute! 
interdicted  the  importation  of  slaves  as  mer 
chandise,  but  permitted  it  for  the  use  of  citi 
zens  of  this  State.  But  under  each  of  them, 
slaves  continued  to  be  imported  for  all  purpo 
ses,  without  any  practical  restraint — and,  be 
fore  1833,  this  Commonwealth  had  become  a 
slave  market,  and  seemed  to  be  in  danger,  not 
of  contamination  merely,  but  of  inundation 
by  superfluous  and  vicious  slaves.  Wages 
were  reduced — mechanics  were  discouraged 
and  many  expatriated — agriculture  was  declin 
ing  in  quality  and  productiveness — commerce 
was  becoming  less  and  less  profitable,  in  conse 
quence  of  the  reduced  net  value  of  domestic 
products,  and  disadvantageous  exchanges  of 
exports  for  the  refuse  slaves  of  the  South  in 
stead  of  money — and  the  gloomy  prospect 
ahead  was  that  of  progressive  deterioration 
and  the  hopeless  prolongation  and  aggravation 
of  Kentucky  slavery,  without  a  rational  hope 
of  rescue  or  amelioration  otherwise  than  by  a 
radical  change  in  the  non-importation  law  of 
1815.  This  change  was  effected  by  the  act  of 
1833,  which  extended  the  prohibition  to  im 
portations  by  our  own  citizens  for  their  own 
use.  This  was  the  only  characteristic  feature 
of  that  act.  It  was  this,  and  this  alone,  that 
identified  and  distinguished  it  as  "THE  ACT 
OF  1833."  All  who  advocated  or  approved 
that  enactment  were,  of  course,  opposed  to 
that  of  1815,  which  it  repealed.  And  now, 
therefore,  no  person  can  be  friendly  to  the  act 
of  1833,  who  desires  to  supplant  it  by  that  of 
1815,  or  (which  is,  in  effect,  the  same  thiag,) 
to  abrogate  its  conservative  interdict  against 
the  importation  of  slaves  "for  use" — and  it  is 
consequently  indisputable,  that  a  substitution 
of  the  policy  of  1815,  for  that  of  1833,  is  a  re 
peal  of  "the  act  of  1833." 

Moreover,  -said  Mr.  K.,  the  statistics  of 
slavery,  in  Kentucky  from  1820  to  1840,  would 
alone  be  sufficient  for  maintaining  the  foregoing 
conclusion.  They  show  that,  from  1820  to 
1830,  the  slave  population  of  the  State  had 
increased  about  40,000 — and  that,  from  1830 
to  1840,  the  increase  was  only  about  1,400 — 
and  as  this  last  period  includes  two  years  be 
fore  the  enactment  of  1833,  during  which  time 
the  increase  may  be  fairly  assumed,  according 
to  the  ratio  before  1833,  to  have  been  at  least 
8,000,  consequently  the  number  of  slaves  in 
Kentucky  must  have  been  reduced  more  than 
6,000  from  1833  to  1840.  These  historic 
facts  prove  that  the  tendency  of  th«  policy  of 
1815,  now  sought  to  be  revived,  is  to  great 
progressive  augmentation,  and  that  of  the  act 
of  1833  (when  upheld)  to  a  gradual  diminu 
tion.  Hence,  again,  this  bill,  if  passed,  will 
operate  as  a  virtual  repeal  of  the  act  of  1833 — 
because  it  will  destroy  its  effect  and  invert  its 
policy.  A  direct  repeal  would  be  more  mag 
nanimous.  Then,  let  not  any  one,  who  pro 
fesses  to  be  in  favor  of  the  act  of  1833,  skulk 
behind  such  an  ambuscade  as  an  ostensible 
modification,  which  it  a  renunciation  of  the 


Si* 


MB.  ROBERTSON'S  SPEECH  OH 


whole  purpose  of  substituting  that  act  for  that  mercial  power  of  Congress  so  far  also  as  it 
Of  1815.  I  prohibits  importation  for  sale?    And  the  con- 

A  consideration  of  the  act  of  1833  involves  j  sequence  would  be,  that  the  bill  now  urged 
two  questions — its    constitutionality  and  its  i  does  not  go  half  far  enough,  and  that  the  acts 
policy.     He  was  surprised  that  the  constitu-  j  of  1794  and  1815  were  nullities, 
tional  authority   to   enact  and  enforce  it  had       Nor  is   the   act  of  1833  a  violation  of  the 
been  denied  in   this  debate.     The  Supreme  j  Constitution   of    the   State.      The    Legisla- 


Court  of  the  State  had  given  a  quietus  to  further 
agitation  of  that  objection,  and  both  public 
sentiment  and  the  concurrent  opinions  of  the 
enlightened  jurists  had  ratified  and  confirmed 
the  unanimous  opinions  of  the  Judiciary.  He 
would  not,  therefore,  he  said,  elaborate  an  ar 
gument  on  the  question  of  power;  but  it  might 


ture  of  Kentucky,  as  already  stated,  has 
all  legislative  power  that  is  not  prohibited  by 
the  Constitution  of  Kentucky  or  by  that  of  the 
United  States.  To  inhibit  the  importation  of 
slaves  is  a  legislative  act;  and  the  authority 
therefore  to  pass  such  an  act  needs  not  to  be 
delegated  by  the  Constitution — it  exists  unless 


not  be  improper  to  make  some  passing  sugges-  jit  is  prohibited  by  that  supreme 'organic  law. 
tions  upon  it.  The  Legislature  has  all  legis- 1  There  is  no  such  prohibition  nor  any  rational 
lative  power  which  is  not  prohibited  either  by  j  pretence  for  presuming  its  existence.  Then 
the  National  or  the  State  Constitution.  The  the  power  exists. 

only  provision  of  the  Constitution  of  the  |  The  vindication  of  the  policy  of  the  act  of 
United  States  which  could  affect  the  authori-  1 1833  did  not  seem  to  Mr.  K.  to  be  more  diftl- 
ty  of  the  State  to  inderdict  the  importation  of]  cult  than  that  of  its  constitutionality.  The 
slaves  within  her  limits  is  that  which  delegates  \  objects  of  the  enactment  were  twofold — 1st, 
to  Congress  the  power  to  regulate  commerce  |  Some  improvement  in  the  quality  and  some 
among  the  States.  But  slavery  is,  by  that  amelioration  in  the  condition  of  our  slaves — 
rery  Constitution,  made  a  basis  of  representa-  2nd,  The  salvation  of  ourselves  and  our  pos- 
tion  and  taxation;  and  is,  therefore  a  funda-  terity  from  the  curse  of  inevitable  and  perpet- 
mental  element  of  State  power.  Can  such  a  J  ual  slavery,  by  drawing  a  sanatory  cordon 
State  right  be  the  subject  of  control  by  Con-  j  around  the  Commonwealth  while  in  a  salvable 
gress?  Is  it  an  affair  of  commerce?  Does  it  state,  and  thereby  preventing  such  an  augmen- 


come  within  the  scope  of  commercial  regula 
tion  by  the  General  Government?  An  affirm 
ative  answer  would  concede  to  Congress  pow 
er  to  change  the  relative  political  strength  of 
the  States — a  power  which  cannot  exist  con- 


tation,  as  well  as  deterioration,  of  slaves  as 
might  not  only  aggravate  but  injuriously  pro 
long  the  slavery  of  the  black  race  against  the 
interest  and  even  the  wishes  of  the  white.  In 
other  words — the  second  and  chief  object  of 


eiitently  with  the  constitutional  co-equality  the  act  of  1833,  was  to  secure  the  poAver  to 
and  proper  independence  of  the  States  of  the  !  abolish  slavery  if  public  sentiment  should 
Union.  Moreover,  slaverv,  in  the  States  in  ever  be  prepared  for  proclaiming  liberty  to  the 
which  it  is  legalized  by  the  local  law  and 


therefore  recognized  and  protected  by  the 
Federal  Constitution,  is  a  domestic  institution 
— and,  which  is  as  much  under  the  exclusive 
control  of  State  sovereignty  as  marriage  or  the 


captive. 

On  the  subject  of  African  slavery  in  the 
North  American  States,  Mr.  R.  had,  he  said, 
always  endeavored  to  look  with  the  eye  of  con 
siderate  philanthropy  and  practical  statesman- 


legal  rights  and  obligations  of  paternity.     The  !  ship.     He   would  rejoice   to  see  all   men,  of 


relations  of  master  and  slave  are  as  purely  local 
here  as  those  of  master  and  servant,  husband 
and  wife,  parent  and  child,  or  guardian  and 
ward.  If  Congress,  under  the  power  to  regu 
late  commerce  among  the  States,  could  prevent 
Kentucky  from  stopping  the  importation  or 
immigration  of  slaves,  it  might,  by  the  exer 
cise  of  that  power  over  slaves  as  mere  proper 
ty,  fasten  slavery  on  the  people  of  the  State 
perpetually  and  even  against  their  will.  This 
would  be  monstrous  enough.  But  the  power 
to  do  this  involves  the  power  to -prevent  the 
non-slareholding  States  from  continuing  so,  by 
denying  to  them  the  right  to  prohibit  the  in 
troduction  and  enjoyment  of  slaves  within  their 
limits  as  articles  of  property  subject  to  com- 


every  color  and  clime,  equal  in  privileges  and 
endoVments,  and  well  qualified  for  the  peace 
ful  enjoyment  of  civil,  social,  and  religious 
liberty  and  light.  But  a  wise  and  inscrutable 
Providence  had  otherwise  ordainded;  and  no 
art  or  policy  of  man  can  change  the  purpose  of 
God.  Whenever  the  black  and  white  races  of 
our  species  are  thrown  together  in  the  same 
community  it  had  long  been  his  opinion  that 
it  is  better  for  both  that  the  inferior  should  be 
in  a  state  of  subordination  to  that  which,  under 
all  circumstances,  is  the  superior.  The  two  races 
are  immiscible.  Amalgamation  would  be  de 
teriorating  to  the  white  race,  and,  in  his  judg 
ment,  inconsistent  with  the  laws  of  social  wel 
fare  and  the  dignity  and  progress  of  the  more 


mercial  power.  No  patriot,  regardful  of  jus-  improved  portion  of  mankind.  The  two  in- 
tice,  or  liberty — of  social  order,  or  of  State  i  congruous  races  cannot  live  together  on  terms 
rights,  could  hesitate  to  denounce  such  an  as- !  of  social  or  civil  equality.  And  freedom, 


sumption  as  absurd  and  ridiculous.  Moreover, 
if  the  act  of  1833  be  unconstitutional  so  far  as 
it  forbids  importation  for  use,  it  must  be  even 
mori  clearly  void  for  conflict  with  the  corn- 


without  power  or  privilege,  is  the  worst  form 
of  slavery  in  disguise.  No  population  can  be 
more  wretched  or  pestilent  than  a  degraded, 
disfranchised  cast.  A  well  regulated  slavery 


ON  THE  BILL  TO  MODIFY  THE  LAW  OF  1833. 


is  far  better  for  the  security  of  the  white  race 
and  the  happiness  and  safety  of  the  black. 

His  conscience,  continued  Mr.  R.,  had  never 
therefore,  been  disturbed  by  any  morbid  senti- 
mentalism  on  the  subject  of  slavery  as  it  exists 
in  Kentucky.  And  he  could  not  feel  that  it  is 
either  impious  or  irrational  to  presume  that  the 
enslavement  in  America  of  the  superstitious 
and  ferocious  Africans  was  approved  by  Omni 
science  for  the  ultimate  redemption,  regenera 
tion,  and  exaltation  of  that  degraded  and  once 
hopeless  race.  He  believed  that  it  would,  at 
no  distant  day,  eventuate  in  the  aggregate 
welfare  of  mankind,  and  especially  in  the  civ 
ilization,  liberty  and  restoration  to  their  native 
land  of  the  captive  Africans.  In  the  dispen 
sations  of  Providence,  immediate  evil  is  often 
the  instrument  of  ultimate  good.  The  Egyp 
tian  bondage  and  self-sacrificing  pilgrimage  of 
the  devoted  Jews  were  designed  for  the  whole 
some  reformation  of  that  distinguished  people; 
the  bloody  overthrow  of  the  Canaanites  was 
the  precursor  of  the  enjoyment  of  the  promised 
land  by  the  depositories  of  the  oracles  of  the 
true  and  only  God;  the  terrible  havoc  and  final 
subjugation  of  the  Gauls  and  Britons  by  the 
Roman  Eagle,  infused  into  the  Celtic  race, 
then  in  a  state  of  semi-barbarism,  the  elements 
of  civilization  and  the  principles  of  Christian 
ity;  the  subjugation  of  the  imperial  Romans 
and  the  desolation  of  their  fair  and  voluptuous 
country  by  the  Vandalism  of  the  North,  en 
grafted  on  a  declining  stock  the  vital  germ  of 
that  enduring  liberty  so  gloriously  illustrated 
by  the  Anglo-Saxon  race;  the  sanguinary 
persecutions  of  the  Puritans,  and  their  conse 
quent  exile  to  the  wilds  of  America,  planted 
in  this  congenial  land  the  seeds  of  civil  and 
religious  liberty;  and  these  seminal  principles, 
dropped,  as  from  the  clouds,  in  a  country  re 
served  until  the  fullness  of  time  for  the  hope 
ful  development  and  glorious  illustration  of 
moral  truth  and  power  among  men,  even  now 
have  grown. to  maturity  and  promise  to  fructify 
the  world;  and,  to  prepare  this  theatre  for  the 
accomplishment  of  the  greatest  ultimate  good, 
the  uncivilized  aborigines  were  driven  from 
their  council  fires  and  the  graves  of  their 
fathers,  and  now,  almost  exterminate,  wander 
in  the  far  West,  homeless,  hopeless,  and  forlorn. 
These,  said  he,  are  but  a  few  of  the  infinite 
multitude  of  historic  events,  illustrating  the 
mysterious  truth  that  instrumentalities,  wrong 
and  grievous  to  human  vision,  are  often  em 
ployed  for  consummating  the  most  benificent 
ends — all  things  working  together  for  the  ul 
timate  good  of  mankind  and  glory  of  the  Ruler 
of  the  Universe.  » 

There  is  a  striking  analogy,  in  this  respect, 
between  the  phenomena  of  the  moral  and  those 
of  the  physical  universe.  The  fire  from  Heav 
en  in  the  lightning's  flash  strikes  down  the 
young  and  the  old,  the  beautiful  and  the  strong, 
the  patriot  and  the  sage;  and  the  people 
mourn;  the  relentless  tempest  of  the  skies 
desolation  in  its  mournful  track;  and 


the  elements  are  charged  with  reckless  ruin. 
But  the  lightning  and  the  whirlwind  purify  a 
morbid  atmosphere  and  drive  away  pestilence. 
In  like  manner  moral  agents,  grievous  in  their 
immediate  operation  on  special  objects,  may 
finally  result  in  aggregate  blessings.  And 
who  can  venture  to  presume  that  negro  slavery 
in  America  may  not  have  been  sanctioned  by 
Heaven  as  the  most  fitting  means  for  effecting 
the  providential  end  of  saving  and  ennobling 
the  doomed  African  race?  The  average  con 
dition  of  the  wretched  barbarians  captured  in 
Africa  either  by  their  own  countrymen  or  by 
the  kidnapping  whites  and  brought  in  chains 
to  America  as  slaves,  may  not  have  been  made 
more  miserable  by  any  form  of  slavery  to 
which  they  have  been  subjected  as  a  collective 
jlass;  and  that  of  their  descendats  has  been 
mproved  by  their  progressive  assimilation  to 
the  free  and  christianized  whites  with  whom 
t  has  been  their  fortune  to  be  associated. 
Already  hosts  of  the  sons  and  daughters  of 
African  cannibals,  redeemed  and  regenerated 
>y  the  genius  of  America,  are,  through  the 
jenevolent  process  of  colonization  in  their 
utherland,  hopefully  contributing,  by  their  ex 
ample,  to  rescue  their  color  from  degradation, 
and,  by  their  influence  and  instruction,  to  en- 
ighten  and  civilize  long  lost  Africa. 

As  early  as  the  year  1G20,  only  about  twelve 
ears  after  the  advent  of  the  white  man  to 
Jamestown,  in  Virginia,  a  British  ship  im 
ported,  into  that  infant  colony  of  forlorn  bach 
elors,  a  cargo  of  unmarried  white  women,  and 
a  Dutch  vessel  landed  at  the  same  place  a  fe\r 
negroes.  The  women  became  wives  and  mo- 
hers  ;  and  thus  though  poor  and  obscure  in 
;he  country  of  their  birth,  they  became  the 
"bunders  of  this  renowned  Commonwealth  of 
reemen,  which  herself  has  been  blessed  as 
he  mother  of  Republics,  and  has  won  the 
lonored  title  of  "magna  mater  virum."  But  the 
negroes  were  doomed  to  abject  and  hopeless 
slavery  in  a  foreign  climate  and  strange  land- 
ifet  it  may  be  that  each  of  these  differently 
reighted  ships  was  the  unknown  harbinger 
>f  future  blessings — one  to  the  white  race,  oy 
giving  anchorage  to  the  drifting  colony  and 
)romotiug  its  free  population — and  the  other 
o  the  black  race  by  their  ultimate  improve 
ment  and  final  regeneration.  Cruel  and  unjust 
as  slavery  may  be  admitted  to  be  in  itself, 
ind  mercenary  and  selfish  as  may  have  been 
he  motives  of  its  introduction  and  prolonged 
existence  among  us,  said  Mr.  R.,  nevertheless, 
n  its  colateral  and  ulterior  results,  it  may,  as 
me  element  in  the  combined  agencies  in  the 
world's  onward  affairs,  be  finally  productive 
of  more  of  aggregate  good  than  evil  in  human 
destiny.  And  although,  in  itself,  considered 
either  abstractly  or  in  its  immediate  and 
)ersonal  consequences,  it  is  an  enormous  evil, 
'ethe  had  never  doubted  that  it  is  more  hurt- 
ul  to  the  master  than  to  the  slave— to  the 
white  than  to  the  black  race.  He  was  not  of 
;he  pro-slavery  party — far,  very  for  from  it. 
He  had  never  considered  ikvery  i» 


824 


ME.  ROBERTSON'S  SPEECH  ON 


blessing.  He  had  always  felt  it  as  a  curse  to 
the  white  race.  But,  as  it  exists  in  Kentucky, 
it  is  not  now  within  the  cotnpass  of  human 
wisdom,  philanthrophy,  and  power  all  com 
bined,  to  adopt  any  system  cf  compulsive 
liberation  which  will  be*practicable,  just,  safe, 
and  sure.  Immediate  emancipation  would  be 
madness  ;  and,  in  his  opinion",  any  organized 
effort  to  initiate  now  a  prospective  scheme, 
would  be  premature,  unwise,  and  self-destruc 
tive.  For  himself,  he  could  never  consider 
any  system  wise,  however  practicable,  unless 
it  is  accompanied  by  some  effectual  and  bene 
volent  plan  of  deportation.  He  would  never 
consent  that  the  incubus  of  a  large  mass  of 
free  and  degraded  blacks  should  be  thrown 
on  the  bosom  of  his  posterity.  Such  an  evil 
would  be  more  intolerable  than  perpetual 
slavery,  bad  as  that  might  be.  And,  there 
being  now  about  200,000  slavesn  in  Kentucky, 
he  could  conceive  no  proper  and  effectual  pro 
vision  for  deporting  all  the  persons  who  would 
become  free  under  the  operation  of  any  sys 
tem  of  gradual  emancipation  which  he  had 
ever  heard  or  seen  suggested.  But  if,  as  many 
believe,  the  physical  adaptations  and  products 
of  Kentucky  would  not,  of  themselves,  pro 
long  the  existence  of  slavery  while  it  shall  es- 
ist  elsewhere,  ultimate  rescue,  in  some  just 
and  peaceful  mode  and  in  the  proper  time,  is 


1833,  and  of  all  those  also  who  so  persever- 
ingly  sustained  it  ever  since  the  enactment  of 
it.  And,  sir,  said  he,  this  was  no  new  policy. 
It  was  but  the  echo  of  the  sentiments  of 
our  '  beloved  fathers  from  the  first  col 
onization  of  Virginia  to  the  year  1794,  and 
was  but  a  revival  of  the  conservative  policy 
of  WASHINGTON,  Jefferson,  and  Madison,  in 
1778,  but  with  a  less  effectual  sanction  for  up 
holding  it.  Had  the  law  of  1778  been  per 
mitted  to  remain  unmodified  until  1799,  when 
the  present  Constitution  of  Kentucky  was 
adopted,  he  thought  it  not  improbable  that,  on 
this  day,  Kentucky  would  have  been  blessed 
with  more  than  a  million  of  "  the  free"  and 
"the  brave,"  without  one  solitary  slave. 
Whether  a  similar  result  would  soon  or  ever 
be  produced  by  now  making  the  prohibition 
and  the  sanction  of  the  act  of  1779,  funda 
mental,  is  a  problem  which  time  alone  cau 
solve.  But  without  further  illustration,  he 
submitted  these  considerations,  as  sufficient 
to  prove  the  wisdom  of  the  act  1833.  And, 
continued  he,  so  far  as  that  act  has  been  per 
mitted  to  operate,  the  beneficence  of  its  ope 
ration  should  not  be  doubted.  During  the 
first  seven  years  of  its  existence,  though  it 
was  often  evaded,  not  only  was  the  num 
ber  considerably  reduced  and  value  improved, 
but  home  production  was  more  profitable,  do 


neither  hopeless  nor  improbable.    Preparatory  ]  rnestic  commerce  more  productive,  slave  pro- 


to'the  consummation  of  any  such  purpose, 
non-importation  of  slaves  would  be  indispens 
able.  To  wear  out  slavery  its  natural  course 
must  not  be  obstructed  by  successive  increase 
from  extraneous  causes.  If  let  alone  the  pro 
blem  of  Kentucky  slavery  will  soon  be  solved, 
and  the  period  is  near  whe.i  the  dawn  of  uni 
versal  freedom  will  cheer  the  heart,  or  the 
cloud  of  inevitable  slavery  will  blast  the  hope 
of  philanthrophy.  Undisturbed  by  acces 
sions  from  abroad,  slavery  here,  if  not  in  its 
congenial  element,  will  soon  decline  to  a  con 
dition  in  which  its  extinction  may  be  accom 
plished  without  hazard.  But  if  Kentucky  be 
as  congenial  as  her  Southern  sisters  to  slavery, 
it  will  exist  here  as  long  as  it  shall  continue 
there,  and  no  legislative  policy  for  hastening 
its  natural  death  would  be  wise  or  effectual! 
In  this  view  the  pro-slavery  and  the  emanci 
pation  parties  should  unite  with  the  great 
conservative  party  in  closing  the  door  to  the 
further  importation  of  slaves,  and  all  try  the 
experiment  of  inherent  and  natural  causes 
on  its  existence  and  value.  If  the  pro-slavery 
party  be  right,  the  experiment  will  gecure  a 
sufficient  number  of  slaves  and  certainly  im 
prove  their  quality  and  value.  If  the  eman 
cipation  party  be  right,  this  policy  will  effect 
their  object  as  soon  as  any  they  contemplate, 
and  much  more  certainly  and  beneficially. 
Consequently,  added  Mr.  R.,  the  conservative 
party,  of  which  he  was  one,  must  be  on  the 
most  eligible  platform ;  and,  therefore,  all 
parties  ought  to  co-operate  in  making  the 
policy  of  the  act  cf  1833  fundamental,  self- 
sustaining,  and  inviolate. 
Such  was  the  view  and  such  was  the  chief 
of  those  who  enacted  the  statute  of 


perty  more  secure  and  less  vexatious,  and  the 
aggregate  wealth  of  the  Commonwealth  was 
augmented  from  $126,601,004  to  nearly  double 
that  amount.  This  wonderful  augmentation 
is  proved  by  the  Auditor's  books,  which  show 
that,  in  1833,  the  total  value  of  taxable  pro 
perty  was  .9126,601,004,  and  that  in  1840,  it 
was  $272,250,027,  which,  deducting  th«  in 
crease  under  the  equalization  law  of  1837, 
would  leave  about  $240,000,000  as  the  valu« 
of  taxable  property  in  1840,  instead  of  $126- 
601,004,  the  entire  value  of  it  in  1833.  Al 
though  the  act  of  1833  was  doubtless  not  tho 
only  cause  that  had  agency  in  the  production 
of  this  sudden  affluence  of  wealth,  yet  un 
doubtedly  it  was  the  chief  and  most  efficient 
agent.  It  inspired  a  new  confidence  and  hope 
— it  stimulated  and  improved  agriculture — it 
increased  the  net  value  of  products — it  raised 
the  price  of  wages,  ensouragiug  manufactur 
ing  and  mechanical  production,  and  greatly 
augmented  the  income  from  our  domestic  com 
merce  by  returning  money  instead  of  negroes 
for  our  exports.  Moreover  it  enhanced  the 
value  of  our  slaves  to  an  aggregate  probably 
exceeding  that  of  a  greater  number  increased 
by  inferior  and  superfluous  accessions  from  the 
South,  and  added  to  the  capital  of  the  State 
hundreds  of  thousands  of  dollars  annually  by 
the  more  profitable  sales  of  slaves  for  export 
ation — several  counties  having  obtained,  in 
this  way,  at  least  $50,000  each  every  year, 
which  was  much  more  than  they  would  have 
received  had  the  number  of  slaves  been  in 
creased  instead  of  being  diminished  and  the 
quality  made  worse  instead  of  better. 

But,   since  the  year  1840,  the  number  of 
slaves  has  been  gradually  increasing  at  th« 


THE  BILL  TO  MODIFY  THE  LAW  OF  1333. 


325 


rate  of  from  on«  to  four  per  cent,  annually  ; !  jeopard  our  peace  and  that  of  the  Union?  Ken- 
and  now  the  totality  is  about  193,000.  This  j  tucky  needs  no  more  slaves— she  has  more  now 
progression  itself,  and  more  especially  the  than  she  wants;  and  is,  every  day,  exporting. 
Oscillation  in  the  ratio  of  it,  demonstrate  that  I  If  50,000  more  should  be  imported,  the  aggre- 
it  has  resulted  from  importations,  sometimes  j  gate  value  01  all  the  slaves  m  the  State  would 
to  a  less  and  sometimes  to  a  greater  extent,  in  not  exceed  that  of  the  present  number,  and 
violation  of  the  act  of  1833.  And  the  Audit-  the  quality  of  the  entire  mass  would  be  cer- 
or's  report  shows  also,  that,  during  that  pe- ! tainly  degraded.  Would  not  this  impolitic 
riod  of  eight  years,  the  wealth  of  the  State  ,  reduction  in  price  and  quality  be i  gratuitously 
has  been  increased  only  $597,689-although  i  unjust  to  the  present  owners  of  slaves  m  Keu- 
during  the  period  of  only  seven  years  imme-  tucky?  Not  even  individual  purchasers  of 
diately  succeeding  the  act  '33,  arid  when  its  foreign  slaves  would  be  benefited.  As  negro 
provisions  were  but  slightly  violated,  the  in- 1  buyers  purchase  here  extensively  for  export  to 
crease  was  about  $115,000,000.  That  report  j  the  South,  the  presumption  is  that  they  can- 
also  shows  that,  within  the  last  eight  years,  jnofc  buy  slaves  of  equal  quality  cheaper  else- 
the  slaves  in  Christian,  a  border  county  re- 1  where.  But,  it  they  could,  a  repeal  of  the 
presented  by  the  author  of  the  bill  under  con-  i  act  of  '33  would,  m  less  than  one  year,  equal - 
sideration,  had  increased  from  about  6,000  to  }ise  the  prices.  Even  now  a  citizen  oi  ken- 
about  7,000;  an  increase  which  must  have  re- !  tucky  may  buy  here  for  his  own  use  better 
suited  chiefly  from  illegal  importations.  These  |  slaves,  at  the  same  price,  and  with  less  hazard 
brief,  but  undeniable,  statistics  prove  the  ben-  i  and  trouble  than  m  \  irginia  or  tae  South.  In 
eficial  operation  of  the  act  of  '33  when  it  was  Ju*  county  of  Fayette,  (said  Mr.R.)  with  only 
reasonably  observed,  and  equally  prove  the  about  2,500  voters,  tnere  are  nearly  11  000 
injurious  effects  of  any  material  evasion  or  re- 1  slaves— considerably  more  than  are  useful  or 
laxation  of  its  sanctions.  j  desired.  Only  three  States  in  the  Union  have 

But  (said  Mr.R.,)  thcpolicy  of  '33  has  had  more  slaves  than  Kentucky.  _  And  not  only 
also  a  salutary  influence  on  the  political  posi-  has  Congress  prohibited  foreign  importation 
tion  of  Kentucky.  Since  that  enactment  and  of  slaves  and  denounced  the  slave  trade  as 


by  her  continued  adherence  to  it,  she  has  ab 
stained  from  any  indication  of  party  sympa 
thy  with  either  the  abolitionism  or  Wilmot 
provisoism  of  the  North,  or  the  ultra  pro- 
slaveryism  of  the  South.  She  has  prudently 
maintained  an  independent  ground  of  patri 
otic  neutrality  between  these  antipodal  parties 
of  sectional  antagonism,  threatening,  by  their 
hot  temper  and  reckless  collision,  the  peace 
and  integrity  of  the  Union.  While  manifest 
ing  a  determination  to  maintain  her  existing 
institutions  against  all  foreign  influence,  she 
has,  at  the  same  time,  evinced  a  repugnance  to 
any  act  that  might  tend  to  increase  the  embar 
rassments  of  her  slavery  condition,  or  prolong 
its  endurance  beyond  the  period  of  its  natural 
life,  depending  alone  on  the  operation  of  in 
ternal  and  natural  causes.  To  this  neither 
the  North  nor  the  South  ever  excepted,  or 
could  reasonably  except ;  and  therefore  each 
section  has  cordially  embraced  Kentucky  as 


piracy,  but  Virginia,  Maryland,  South  Car 
olina,  and  Mississippi,  as  well  _ as  Kentucky, 
have  long  since  forbidden  the  importation  of 
slaves  from  any  other  State.  It  is  evident 
therefore  that  the  interests  of  Kentucky  do 
not  require  the  importation  of  more  slaves, 
but  forbid  it.  The  passage  of  this  bill  would 
reduce  the  value  of  the  slaves  now  here — di 
minish  the  value  of  slave  labor — reduce 
wages — injure  the  useful  class  of  free  me 
chanics — agitate  the  people  and  perhaps  con 
vulse  the  State — and,  by  suddenly  changing 
her  commanding  position  of  neutrality  at  the 
most  critical  aud  unpropitious  crisis  in  both 
domestic  and  national  affairs,  might  impair 
the  just  influence  of  tke  Commonwealth,  and 
jeopard  her  own  peace,  the  security  of  the 
South,  and  the  integrity  of  the  Union.  The 
passage  of  this  bill  is  therefore  forbidden  also 
.  by  respect  for  the  wisdom  of  our  predecessors, 
respect  for  a  venerable  policy,  and  prudent  re- 


an  impartial  member  of  a  discordant  sister-  gard  for  harmony,  peace  and  security,  here 

hood.    Hence  she  alone  may  exercise  a  sue-  -^ -1— 1—  ***'••********»> 
cessful  umpirage — she   alone  may  still    the 
fearful  agitation  of  the  free- soil  question;  and, 


and  elsewhere,  now  and  hearafter. 

It  has  been  said  here  (said  Mr  R.,)  that  the 
act  of  1833  was  an  emancipation  movement ! 


thus  embedded  as  an  Itshmus  between  two  i  If  this  be  true,  a  majority  of  the  freemen  of 
boisterous  and  turbid  oceans,  she  can,  if  she!  Kentucky  and  of   their  representatives  were 


stand  firm,  save  the  Union  as  she  has  hitherto 
saved  it,  and  as  her  present  position  will  en 
able  her  still  to  save  it.  But  let  her,  at  this 
critical  juncture  of  our  National  Union,  make 
a  direct  movement  either  for  decided  emanci 
pation  or  for  the  perpetuation  of  slavery,  and 
then  her  "  occupation's  gone" — then  she  will 
be  no  longer  a  presiding  arbitress,  but  a  com 


mon  partizan. 
And  now,  Mr. 


Chairman,  (continued  Mr. 


R.)  why  this  new-born  and  burning  zeal  to 
repeal  a  wise  and  benificent  enactment  that 
has  survived  the  ordeal  of  15  years'  severe 
scrutiny  and  trial?  Why  thus  heedlessly 


then  and  have  ever  since  been  emancipation 
ists.  Yet  one  of  the  chief  authors  of  the  act 
of  1833  by  his  vote  and  otherwise,  is  the 
owner  of  300  slaves,  and  pro-slavery  almost 
to  fanaticism.  He  supported  that  law  doubt 
less  for  the  purpose  of  increasing  the  value  of 
his  slaves  and  improving  their  quality.  There 
are,  Mr.  Chairman,  continued  Mr.  R.,  three 
parties  in  Kentucky  in  reference  to  slavery— 
one  consisting  of  persons  who  consider  slavery 
a  blessing  to  the  white  race,  and  perfectly  con 
sistent  with  morality  and  religion — another 
composed  of  persons  who  look  on  slavery  as 
a  moral,  social  and  political  curse,  aud  cUsira 


826 


MB.  ROBERTSON'S  SPEECH  ON 


the  adoption,  at  once,  of  some  system  of 
emancipation,  instantaneous  or  prospective — 
and  a  third  composed  of  persons  who,  occu 
pying  intermediate  ground,  deprecate  negro 
slavery  as  an  evil  especially  to  the  white  pop 
ulation,  but,  believing  that,  in  the  existing 
condition  of  it  in  Kentucky,  any  provision 
now  for  emancipation  would  be  premature,  im 
practicable  and  ultimately  suicidal,  are  yet 
opposed  to  any  act  that  will  increase  the  diffi 
culties  obstructing  the  work  or  retarding  the  | 
time  of  eradication,  and  prefer  to  await  time's  j 
developments  without  disturbance  by  foreign 
importation.  Of  these  three  classes,  he  thought 
the  first  the  smallest  in  number,  and  the  last 
much  the  largest.  Of  this  major  class  were 
a  large  majority  of  those  who  adopted  and 
have  continued  to  sustain  the  act  of  1833. 
The  wise  and  patriotic  men  who  enacted  that 
law  looked  backward  on  the  history  of  slavery 
and  forward  to  the  probable  consequences  with 
which,  without  legislative  guardianship,  it 


too  true  that  such  personal  legislation  does,  to 
a  great  and  mischievous  extent,  paralyze  the 
act  of  1833.  But  this  is  clearly  wrong.  Tho 
act  ought  to  be  repealed  or  enforced;  and,  un 
less  repealed,  it  is  the  duty  of  the  Legislature 
to  make  it  effectual  by  giving  it  a  sanction 
that  will  secure  it  from  evasion,  instead  of 
offering,  as  it  does,  almost  every  day,  encour 
agements  to  the  violation  of  it.  It  is  also  true, 
that  the  penalties  denounced  by  the  act  are  so 
rarely  enforced,  that  the  prohibition  operates 
on  the  conscientious  only,  and  thus,  to  a  de 
plorable  extent,the  act  has  become  a  dead  letter. 
But  the  remedy  for  all  this  is  plain.  Instead 
of  a  fine,  which  scarcely  any  person  will  at 
tempt  to  enforce,  let  the  Legislature  or  the 
Convention  substitute  the  emancipation  of 
every  slave  who  shall  be  imported  in  violation 
of  the  act ;  and  then  the  law  will  live  and 
reign  supremely  and  effectually  ;  for,  as  every 
such  slave  would  assert  his  rights,  the  sanc 
tion  would  enforce  itself,  and  slaves  would  no 


TViAlVJJ,      WiVMVUU     .ICglSiatiVC      g  Util  UiaUOillp,      1U      U1U11    YVUU1U    ClllUlViC   AUBC4.Il    O.IJU.    010.VCO     WUU.IU.    UW 

was  pregnant — to  the  waste  of  lands,  reduc- 1  longer  be  illegally  imported.     This  argument 
tion  of  profits,  insecurity  of  property,  and  to  " 
demoralization,  degeneracy,  and  possible  in 


surrection — they  knew  that  the  acts  of  1794 
and  1815,  repealing  that  of  1778,  had  not,  at 
all,  repressed  the  importations  of  slaves  for 
use  or  for  sale — considering  the  latitude,  soil, 
and  products  of  Kentucky,  they  hoped  that 
perpetual  slavery  was  not  her  inevitable  des 
tiny — and,  desiring  not  to  leave  their  posterity 
overwhelmed  by  such  a  state  of  slavery  as  to 
be  unable  to  do  in  respect  to  it  jwhat  they, 
might  prefer — they  resolved  to  soothe  and 
bandage  the  morbid  tumor  of  negro  slavery 
in  Kentucky  before  it  should  become  an  im- 
medicabile  vulnus — an  incurable  ulcer. 


for  a  repeal,  therefore,  is  a  felo  de  se — it  cuts 
its  own  throat,  and  is  disparaging  to  Legisla 
tive  candor  and  wisdom. 

But,  said  Mr.  R.,  were  it  even  consistent 
with  sound  policy  to  abrogate  the  law  of  '33, 
this  is  not  the  proper  time  for  such  a  decisive 
movement.  And  even  the  agitation  of  the 
subject  at  this  unpropitious  session  will  do 
much  harm.  Kentucky,  now  in  a  crysalis 
state  of  eventful  transition,  looks  with  min 
gled  hope  and  fear  to  the  coming  Convention 
for  organic  renovation.  All  her  wisdom  and 
unimpassioned  thought  are  necessary  to  a  safe 
result.  The  subject  of  slavery  will  engage 
the  consideration  of  the  Convention,  and  will 


If  men  who  thus  thought  and  thus  acted !  be  adjusted  by  the  new  Constitution,  as  far  as 
were  emancipationists,  he,  Mr.  R.,  must  re- j  fundamental  law  can  settle  it.  Would  it  not 
peat  that  a  majority  of  Kentuckians  are,  and  be  prudent,  as  well  as  respectful,  to  defer  this 


long  have  been  in  the  same  category.  The 
Legislature  has  rejected,  every  session  since 
1833,  bills  similar  to  that  now  under  consider 
ation. 

In  one  sense,  it  may  be  true,  that  the  act  of 
1833  itself,  might  prove  to  be  a  movement  to 
wards  emancipation;  for,  if  Kentucky  be  not 
adapted  to  long  continued  slavery,  that  act, 
vigorously  enforced,  would,  in  time,  place  the 
country  in  such  a  condition  of  interest  and  of 
sentiment,  as  to  secure  ultimate  and  easy  ex 
trication.  But  no  patriotic  and  sensible  pro- 
slavery  man  would  be  opposed  to  such  a  con 


summation  in  such  a  mode.    Had  slavery  ne-  ^ hey  approve  the  purpose  of  the  act  of  '33,  they 
ver  existed  in  Kentucky,  how  many  of  her  will  see  that  it  shall  be  made  permanent  and 


citizens  would  vote  for  introducing  it  now  for 
the  first  time  ?  Certainly  not  many,  if  any. 
He  who  would  not  do  that,  could  not  consist 
ently  vote  for  importing  a  fresh  supply  of 
slaves — for  if  it  would  be  unwise  to  initiate, 
it  must  be  wrong  to  do  anything  to  perpetuate 
or  increase  it. 

But  i'ie  chief  and  only  remaining  reason 
urged  for  the  repeal  of  the  actof  1833,  is,  said 
Mr.  R.,  the  fact  that  the  act  is  not  enforced, 
and  that  even  the^Legislature  itself  encourages 
evasion  of  it  by  special  acts  legalizing  indi 
vidual  violation  of  it*  prohibitions.  It  is  but 


whole  matter  to  the  Convention,  unaffected  by 
legislative  instruction  or  presumptuous  anti 
cipation? 

This  body  has  already  on  more  occasions 
than  one  gone  beyond  its  legal  sphere  and  ex 
pressed  abstract  opinions  altogether  motive 
less,  unless  they  were  intended  to  instruct  the 
people  or  influence  their  delegates  in  Conven 
tion.  This,  sir,  is  an  inversion  of  the  proper 
and  accustomed  course  ;  instead  of  reflecting, 
it  is  attempting  to  manufacture  public  opin 
ion.  On  the  subject  of  slavery  especially,  the 
people  will  think  and  act  for  themselves.  If 


permanent 

effectual  by  a  provision  in  their  constitution. 
And  if  a  majority  be  against  it,  that  constitu 
tion  will  be  sure  to  contain  such  provisions  as 
will  paralyse  legislative  will,  so  as  to  keep  the 
door  wide  open  for  the  influx  of  foreign  slaves. 
The  anticipating  movement  made  by  this  bill 
therefore,  premature  and  unnecessary  at 


least. 
o\anger. 


It  is  much  more;  it  is  pregnant  with 
There  are  thousands  of  the  best  and 


most  intelligent  of  Kentuckians  who  are  will 
ing  to  make  a  fair  trial  of  the  issue  of  slavery, 
so  circumscribed  as  to  escape  all  foreign  or 
extraneous  influence.  But  if  thin  bill  be  pas* 


THE  BILL  TO  MODIFY  THE  LAW  OP  1833 


ed  they  will  construe  it  as  a  pro-slavery  move, 
designed  to  perpetuate  slavery  by  immediately 
augmenting  the  number  of  slaves  to  such  an 
extent,  as  to  place  the  convention  in  vinculis 
and  render  the  initiation  of  prospective  eman 
cipation  hopeless  to  this  generation.  They 
will  feel  that  a  new  issue  is  proposed  to  them; 
and,  convinced  then  that  the  only  or  best  time 
to  strike  for  ultimate  relief  will  be  before  the 
approaching  convention,  they  will  rally  on 
that  question.  And,  on  such  an  issue,  so 
forced,  there  will  be  all-absorbing  agitation, 
almost  to  convulsion  ;  one  consequence  of 
which  will  be  that,  throughout  the  State,  the 
controling  question  in  the  selection  of  dele 
gates  to  the  convention,  will  be  that  of  initia 
tive  emancipation  now,  or  perpetual  slavery. 
The  delegates  will  be  elected  without  regard 
to  their  fitness  or  their  opinions  on  other  fun 
damental  subjects  ;  and  consequently,  there 
would  be  danger  that  a  bad  constitution  would 
be  proposed,  which  oifght  not  to  be  adopted.  * 

sir,  said  he,  let  us  not  rouse  the  slumbering 
lion.  Look  to  the  posture  of  slavery  here  and 
the  popular  feeling  respecting  it,  Kentucky 
now  quivers  at  the  base  of  a  heaving  vulcano. 
Uncover  not  the  crater.  Desolation  may  be 
the  consequence  of  an  eruption  provoked 
by  the  temerity  of  passing  or  even  agitating 
this  reckless  and  portentous  bill. — If  the 
people  are  permitted  to  be  sober  and  tranquil, 
until  after  the  election  of  delegates,  the  con 
stitution  will  be  safe  and  good.  But  heedlessly 
agitate  them  on  the  stultifying  topic  of  slave 
ry,  and  there  will  be  neither  peace  nor  safety 
— here  nor  throughout  this  entire  Union. 
Many  aspiring  politicians,  of  selfish  ambition, 
and  a  still  larger  number  of  fanatics,  on  one 
side  of  "  Mason's  and  Dixon's  line,"  are 
striving  to  consolidate  the  non-slaveholdiug 
States  on  free-soilism  as  the  paramount  test  of 
National  party — and  there  are  but  too  many 
Hotspur's  and  ultra  pro-slavery  men  on  the 
other  and  numerically  weaker  side  of  the  line, 
who  rashly  play  into  the  hands  of  these  "North 
Men,"  and  encourage  an  issue  which,  if  ever 
fully  made  up,  must  result  in  the  political 
subjugation  of  the  South,  or  a  disruption  of 
the  union.  It  is  the  interest  of  Kentucky  to 
prevent  that  fearful  issue  ;  and  she  can  avert 
it  only  by  abstaining  from  slave  agitation 
and  remaining  self-poised,  firm  and  moderate. 

He  regretted  to  hear,  as  he  had  heard,  a  hope 
expressed  on  this  floor,  that  Kentucky  would 
throw  herself  into  the  arms  of  the  South  and 
denounce  defiance  to  the  North.  It  would,  he 
thought,  be  much  more  consistent  with  her  re 
sponsible  position  and  her  lofty  patriotism,  a 
hitherto  illustrated,  to  throw  one  arm  around 
the  South,  and  the  other  around  the  North 
and  with  a  sister's  embrace,  hold  them  fast,  as 
an  affictionate  sisterhood  of  the  same  blood 
the  same  name,  and  same  the  destiny.  A  galian: 
ship  in  the  perilous  strait  between  Scilla  anr 
Charybdis  is  not  unlike  Kentucky  now.  And 
carrying  out  the  simile,  he  hoped  that  the  self- 

*Th:s  prophecy  was  literally  and  woefulh 
fulfilled. 


denying  crew,  like  old  Ulysses,  would  tie 
hemselyes  to  the  mast,  and,  looking  neither 
o  the  right  nor  to  the  left,  but  straight  ahead 
o  the  port  of  safety — would  escape  the  whirl- 
300!  of  perpetual  slavery  on  the  one  side,  and 
he  rocks  of  political  abolition  on  the  other. 

He  repeated  that  free-soilism,  as  exemplified 
>y  the  "  Wilmot-proviso,"  is  the  offspring  of 
'auaticism  and  political  ambition.  That  phi- 
anthrophy  must  be  affected  or  insane,  which 
would  coop  up  slavery  so  as  either  to  perpetu 
ate  it  in  the  States  where  it  now  exists  or  drive 
t  to  the  bloody  crisis  of  St>  Domingo.  With 
out  some  outlet  for  exportation,  the  present 
m  practicable  numbers  in  Kentucky  could  not 
3e  diminished.  Forced  on  us  without  our  con 
sent,  what,  said  he,  are  we  to  do  with  them  t 
Emancipate  them  and  leave  them  here  ?  That 
's  impossible.  Will  the  States  in  which  abol- 
tionism  is  urged  as  a  paramount  duty,  receive 
them  and  elevate  them  to  a  social  and  civil 
equality  with  their  white  population  ?  They 
would  scorn  the  proposition.  Would  they 
agree  to  set  apart  New  Mexico  as  a  sacred  fund 
for  paying  for  such  slaves  as  the  owners 
might  consent  to  liberate  on  receiving  indem 
nity  ?  At  such  a  proposal  they  would 
laugh.  Then  the  only  ultimate  remedy  is  ex 
pansion.  But  fanaticism  insists  that  it  is  both 
a  civic  and  Christian  duty  to  dam  ,-i^very  up 
till  it  shall  become  putrid,  or  rising  to  a  resist 
less  torrent,  overwhelm  all  the  social  founda 
tions  of  order,  security  and  peace.  This  is  in 
sanity,  or  moral  treason.  But  there  are  those 
who,  knowing  all  this,  will  urge  the  "  Wilmot 
proviso,"  in  reference  to  New  Mexico  and  Cal 
ifornia,  where  without  any  Congressioiial  re 
striction,  slavery  can  never  exist.  Their  ob 
ject,  therefore,  cannot  be  to  prevent  tiie  dese 
cration  of  the  soil  of  those  countries 
by  the  footsteps  of  slavery.  But  the  non- 
slaveholding  states,  if  consolidated  on  such  a 
national  question  as  that  of  "  free-soil,"  would 
hold  the  rod  of  empire,  and  rule  not  only  the 
elections  of  President,  but  the  destinies  of  the 
Union.  Here  may  lie  the  lurking  clue  to  the 
persevering  agitation  of  free-soil  ism  by  North 
ern  politicians.  If  the  territoiy  recently 
acquired  by  the  common  blood  and  common 
treasure  of  the  states  in  which  slavery  exists 
and  in  which  it  does  not,  were  congenial  to  its 
existence,  could  any  just  and  'patriotic  man, 
considering  the  compromise  and  recognition  of 
slavery  in  the  Federal  Constitution,  believo 
that  anv  act  of  Congress  prohibiting  slave 
holders  in  any  of  the  states  from  emigrating 
thither  with  all  their  property  would  be  either 
politic  or  just  ?  Why  deprive  the  inhabitants 
of  that  territory  of  the  right  to  decide  for  chemj 
selves  'I  To  permit  perfect  liberty  011  that 
subject,  would  neither  increase  the  evils  nor 
prolong  the  duration  of  American  Slavery, 
nor  even  recognise  its  legality  otherwise  than 
it  is  sanctioned  by  the  supreme  law  of  the 
Union.  But,  though  he  could  never  vote  for 
the  "  Wilmot-proviso,"  he  would  not  resist  it 
by  war,  secession,  or  nullification.  The  South 
ought  not  to  suffer  itself  to  be  uselessly  excited 
by  it  so  as  to  jeopard  its  own  just  share  of 


328 


MR.  BOBEBTSOH'S  SPEECH  OJf 


power,  or  the  peace  and  integrity  of  the  Union. 
But  whatever  the  South  may  do,  let  Kentucky 
stand^aloof,  and  exhibit  another  illustration 
of  the  emblematic  motto  inscribed  in  sunshine 
on  her  escutcheon—"  UNITED  WE  STAND, 
DIVIDED  WE  FALL." 

Had  this  lot  been  cast  in  a  land  of  universal 
freedom,  he  never  would  consent  that  its  vir 
gin  bosom  should  be  soiled  by  the  tread  of 
slavery,  or  its  tranquility  disturbed  by  the 
cry  of  a  slave-  Of  course,  were  he  a  resident 
of  California,  he  would  oppose  the  introduc 
tion  of  slavery  there.  But  the  people  of  that 
country,  like  the  people  here,  should  be  left 
free  to  regulate  their  own  domestic  relations  in 
their  own  way  ;  and,  if  they  should  desire  to 
have  slaves,  Congress — though  in  his  opinion 
possessing  the  power  to  prevent  them  while 
in  a  territorial  state  of  dependence  on  the  un 
limited  legislation  of  the  General  Government- 
would  act  unwisely,  as  well  as  unjustly,  to  ex 
ercise  it,  and  more  especially  as,  in  that  case, 
the  act,  being  altogether  UTinecessary,  would 
seem  to  be  wantonly  intended  for  the  political 
aggrandisement  of  one  section  of  the 
union,  and  therefore  would  be  the  more  un 
gracious  and  offensive  to  another  section, 
which,  though  not  quite  so  populous,  is  at 
least  as  intelligent  and  patriotic. 

Slavery  in  Kentucky^  continued  Mr.  R.,  is  a 
moral  and  political  evil.  The  children  of 
slaveholders  are  injured,  and  many  of  them 
ruined  by  it ;  and  it  has  greatly  reduced  Ken 
tucky's  ratio  of  political  power;  for  whilst  she, 
the  first  born  of  the  old  "  13,"  has  only  ten  re 
presentatives  in  Congress,  Ohio,  younger  in 
origin  and  inferior  in  physical  adaptations,  has 
already  twenty-one  representatives  in  the  same 
body.  But  the  slaves  here  are  so  numerous, 
and  slavery  itself  is  so  interwined  with  the 
social  or  personal  habits  of  the  free  popula 
tion  as,  in  his  judgment,  to  forbid  the  adoption 
now  of  any  system  of  emancipation  with  a 
rational  hope  of  a  consummation  either  sa 
tisfactory  or  beneficial.  Before  this  can  be 
done,  the  number  of  slaves  must  be  consider 
ably  diminished  and  the  people  more  and 
more  assimilated  to  the  non-slaveholding 
habits  and  condition.  The  experiment  of  non 
importation  will  soon  decide  whether  Ken 
tucky  is  destined  long  to  continue  a  slave 
state,  and  will  in  proper  time  we  hope  devel- 
ope  public  sentiment  on  that  subject.  It  is 
the  interest  of  all — the  duty  of  all — to  try 
hat  experiment.  Whatever  may  be  its  final  re 
sults,  its  operation  will  be  beneficial  to  all  par- 
ties — masters  and  slaves,  the  pro- slavery  par- 
tv,  the  emancipation  party,  and  the  conserva 
tive  party.  This  he  had  already  endeavoured 
to  show,  and  he  would  add  nothiug  more  on 
that  subject.  The  only  mode  of  effectuating 
the  non-importation  policy  of  1778.  and  of 
1833,  would  be  to  make  the  prohibition  and 
the  sanction  of  the  former  act  fundamental, 
by  imbedding  them  in  the  constitution.  Then, 
the  sanction  upholding  the  prohibition,  both 
would  be  placed  above  legislative  caprice, 
and  stand  without  violation  or  evasion.  The 
constitution  ought  also  to  prohibit  any  legisla 


tive  act  emancipating  any  slave  existing  at  the 
date  of  the  enactment,  without  the  owner's 
consent,  or  full  compensation.  And  he  "would 
prefer  that  it  should  also  prohibit  any  legis 
lative  act  for  emancipating  the  post  nati  with 
out  a  concurrence  of  three-fifths  of  each  branch 
of  the  Legislature,  and  also  without^  some 
effectual  provision  for  the  benevolent  and  cer 
tain  deportation  and  settlement  of  all  the  per 
sons  emancipated.  He  would  desire  a  con 
currence  of  more  than  a  bare  majority,  because 
lie  would  doubt  the  policy  and  stability  of 
any  system  to  which  about  one  half  of  the 
freemen  of  the  State  are  opposed.  But  no 
reasonable  man  could  object  to  the  initiation 
of  a  prospective  system  when  three-fifths  of 
the  voters,  after  a  satisfactory  experiment, 
should  concur  in  the  adoption  of  it.  But  on 
this  point  he  would  not  be  tenacious.  He 
would  be  satisfied,  if  a  majority  prefer  it,  with 
a  constitutional  power  to  amend  the  State, 
just  as  the  Federal  Constitution,  in  any  one 
provision  without  a  revision  of  the  whole. 
He  would  be  willing  also  to  make  illegal  im 
portation  a  Penitentiary  offence. 

Jn  reference  to  slavery,  said  Mr.  K.,  thetrua 
and  only  proper  or  available  contest  in  the  se 
lection  of  delegates  to  the  convention,  would 
be  on  the  question  whether  the  policy  of  the 
act  of  '33,  with  the  sanction  of  the  act  of  '78, 
should  be  incorporated  in  the  constitution. 
That  issue  will  be  easily  understood  by  all  ; 
and  if  the  conservative  party  prevail,  the  tri 
umph  will  be  permanent,  and  its  fruits  will 
be  satisfactory  to  every  considerate  patriotic 
and  practical  citizen.  If  Kentucky  ought  not  to 
be  a  slave  State,  this  policy  will  liberate  her 
as  soon  as  any  other,  and  more  certainly  and 
satisfactorily.  If  she  be  destined  to  perpetual 
slavery,  the  fact  will  be  soon  ascertained,  and 
the  country  will  acquiesce,  without  agitation, 
in  a  destiny  which  will  then  be  found  to  be 
natural  and  inevitable.  And,  sir,  said  he, 
when  the  issue  is  made  between  those  who  are 
in  favor  of  perpetuating  slavery  and  those 
who  are  for  standing  still  and  doing  nothing 
which  will  tend  to  its  perpetuation,  the  vote 
will  be  apt  to  prove  that  the  pro-slavery  par 
ty  are  in  a  small  minority — and  then  the  over 
whelming  party  of  conservatism  will,  for  all 
just  ulterior  purposes,  have  the  power  in  their 
own  hands  to  use  at  tho  proper  time  and  in 
the  best  mode. 

For  advocating  the  foregoing  plan,  and  for 
uttering  the  foregoing  sentiments  he  had  (he 
said)  been  charged  with  encouraging  aboli 
tionism.  If  this  be  abolitionism,  God  bless 
and  prosper  it.  He  had  also  been  rebuked  on 
this  floor  as  recreant  from  fidelity  to  Kentucky, 
and  ungraciously  warned  that  his  cheeks 
would  be  mantled  with  tho  blush  of  shame. 
He  feared  no  such  consequence 'as  likely  to 
follow  his  opposition  to  a  bill  for  the  benefit 
of  "  negro  traders,"  at  the  expense  of  the  pros 
perity  and  happiness  of  his  native  ana  be 
loved  Commonwealth.  But  who  made  this 
charge,  and  against  whom  was  it  made  ?  The 
accuser  is  comparatively  a  young  man  who 
has  no  peculiar  stake  in  the  welfare  of  the 


THE  BILL  FOR  MODIFYING  THE  LAW  OF  1833. 


329 


State,  nor  has  done  anything  extraordinary  for 
promoting  it — a  batchelor,  mimored  by  any  of 
the  sympathies  which  bind  the  heart  of  man 
most  strongly  to  his  country — an  isolated  be 
ing — wifeless — childless — homeless — "  a  root 
out  of  dry  ground."  And  of  whom  does  this 
young  man  thus  hazardously  speak  ?  One 
whose  parents  immigrated  to  Kentucky  in  the 
"  hard  winter  of  '19,"  encountered  all  the  per 
ils  and  privations  of  the  early  settlement,  and, 
after  having  helped,  by  their  virtues  and  their 
example,  to  make  her  what  she  is,  now  sleep 
beneath  her  sod  in  honor  and  peace — one  who 
was  born  in  Kentucky  and  married  in  Ken 
tucky — whose  children  dead  are  buried  here, 
and  whose  children  living  are  all  around  him 
with  a  large  posterity  identified  with  the 
honour  of  their  native  State — one  who,  now 
grown  old  in  the  service  of  Kentucky,  never 
did  anything  of  which  she  complained,  but 
has  always  endeavoured  to  contribute  his 
humble  mite  to  the  establishment  of  her  re- 
uowu — one  who  is  indebted  for  all  he  has  or 
hopes  for  on  earth,  to  the  kindness  of  Ken 
tucky,  and  expects  ere  long,  to  repose,  with 
his  kindred,  in  the  bosom  of  the  mother  clay 
which  gave  him  birth — one,  in  fine,  who, 
without  egotism,  may  be  permitted  to  say  that 
he  is,  as  he  could  not  but  be  and  ever  has  been, 
every  inch,  a  true  Kentuckian  in  the  sterling 
import  of  that  honored  title.  And  it  is  because 
he  is  what  he  is  and  feels  therefore  for  Ken 
tucky's  welfare  as  he  does  feel,  that  he  is  so 
much  opposed  to  this  "negro  trader's"  bill. 
Believing,  as  he  does,  that  the  agitation  and 
passage  of  it  now  will  be  pregnant  with  dis 
honor  and  irreparable  mischief,  he  feels  that, 
though  he  claims  no  more  stoical  patriotism 
than  any  other  free  and  filial  Kentucldan 
ought  to  possess  in  regard  to  sacrifices  for  the 
benefit  of  his  State,  rather  than  be  instrumental 
in  passing  this  bill,  he  would,  Mutius  like,  suf 
fer  his  right  hand  to  be  burnt  to  the  stump. 
But  he  feared  that,  in  endeavoring  to  defeat 
this,  pestilent  law,  he  was  on  a  forlorn  hope. 
He  had  heard  that  the  party  in  favor  of  it  had 
42 


been  organised  and  enrolled,  and  counted  a 
majority  of  22.  Still  he  had  some  hope  that 
so  great  a  misfortune  as  the  passage  of  the 
bill  may,  some  how  or  other,  be  averted  from 
the  country.  But,  having  endeavored  faith 
fully  to  do  his  duty,  he  would  be  guiltless  of 


their  gory  locks"  at  him.  And  if  it 
shall  ever  be  his  posthumous  fortune  to  have 
a  monument  to  commemorate  his  poor  name, 
he  would  desire  no  better  epitaph  than  this — 
"  Born  in  a  slave  State,  he  never  disturbed  his 
country's  peace  on  the  subject  of  Slavery  nor 
uttered  a  sentiment  or  did  an  act  tending  to  ag 
gravate  its  evils  or  prolong  its  existence."  Ven 
eration  for  the  precedents  stereotyped  in  the 
past  history  of  Virginia  and  Kentucky — re 
spect  for  the  memory  of  the  patriots  and 
statesmen  who  established  and  upheld  them, 
and  regard  for  the  welfare  of  posterity,  all  re 
quire  the  rejection  of  this  bill.  And,  tohe]p, 
if  anything  earthly  can  help  to  defeat  it,  he 
would  call  on  the  memories  of  the  past,  ap 
peal  to  the  interest  of  posterity,  and  invoke, 
(pointing  to  the  portraits  of  Washington  and 
Lafayette,)  the  Spirit  of  the  Father  of  his 
country  and  that  also  of  his  friend  and  coad 
jutor  by  his  side,  both  benefactors  and  liberat 
ors  of  mankind — t©  hover  over  this  House,  and 
inspire  its  members  with  practical  wisdom 
and  becoming  moderation.  The  welfare  of 
Kentucky,  for  generations  to  come,  may  be  in 
volved  in  this  bill.  If  it  fall,  Kentucky 
ought  to  clap  her  hands  with  joy  ;  and  if  the 
coming  Convention  shall  also  incorporate  in 
the  new  Constitution,  the  policy  of  '33  with  a 
sufficient  sanction,  the  page  recording  these 
glorious  events,  will  be  one  of  the  brightest  in 
the  annals  of  our  noble  Commonwealth,  and 
the  names  of  the  statesmen  who  shall  have 
contributed  to  the  luster  of  that  enduring  re 
cord,  will  be  embalmed  in  the  memory,  and 
consecrated  by  the  gratitude  of  a  long  line 
of  blessed  posterity. 


ADDRESS 

To  the  People  of  Fayette  when  a   Candidate  for  the   Convention. 


The  position  which  I  occupy  as  a  candidate 
for  the  Convention,  being  misunderstood  or 
misrepresented — especially  on  the  subject  of 
slavery — I  feel  it  my  duty  to  you,  as  well  as 
to  myself  and  to  my  principles,  to  define  that 
position  in  a  mode  which  will  be  accessible  to 
all  and  leave  no  pretext  for  misconception 
hereafter. 

The  present  Constitution  of  Kentucky  is,  in 
my  judgment,  the  best  in  the  Union.  It  is  not 
perfect,  because  no  work  of  mau  ever  was  or 
ever  will  be.  Nor  is  there,  probably,  one  intel 
ligent  citizen  of  the  Commonwealth,  who 
would  not  make  some  alteration  in  it,  if  he 
could.  But  no  constitution  was  ever  adopted, 
which  any  one,  even  of  those  who  concurred 
in  the  adoption  of  it,  preferred  in  every  re 
spect.  Being  a  common  work,  it  must  be  the 
offspring  of  a  compromise  of  conflicting  in 
terests  and  opinions,  whereby  each  party  to  it 
surrenders  more  or  less  of  what  he  would  in 
dividually  prefer.  Although  I  have  but  little 
hope  that  we  are  now  prepared  to  make  a  better 
Constitution  than  that  under  whose  banner 
many  of  us  were  born  and  our  State  has 
prospered  and  been  eminently  honored,  yet  it 
is  my  interest  and  my  desire  that  we  "shall 
adopt  one  as  good  as  our  collective  reason  and 
experience  will  enable  us  to  make,  all  acting 
soberly  for  ourselves  and  for  those  who  shall 
come  after  us. 

There  is  great  danger  that  a  headlong  agita 
tion  of  questions  concerning  slavery  will  de 
throne  reason  and  instal  passion  as  the  arbi- 
tress  in  the  approaching  Convention,  and 
place  in  it  mairy  members  who  are  neither 
soundly  conservative  on  other  more  radical 
subjects,  nor  in  any  proper  respect  qualified 
for  framing  an  organic  law  for  the  great  Com 
monwealth  of  Kentucky.  This  agitation  I 
have  long  apprehended  and  anxiously  en 
deavored,  as  far  as  I  could,  to  prevent;  and  con 
sequently,  come  as  it  may,  I  shall  feel  guiltless 
of  any  of  its  injurious  consequences.  It  is  un 
reasonable  and  could  and  should  be  avoided. 

I  am  not  one  of  those  who  believe  that  do 
mestic  slavery  is  a  blessing,  moral  or  physical, 
to  the  white  race.  I  cannot  believe  that  it 
makes  us  richer,  more  moral,  more  religious, 
more  peaceful,  more  secure,  or  more  happy — 
nor  can  I  admit  that,  under  its  various  influ 
ences,  our  children  become  more  industrious, 
more  practical,  or  more  useful;  and  I  am  sure 
that  free  labor  is  degraded,  and  laboring  free 
men  greatly  injured  by  slavery.  If,  in  the  dis 
pensation  of  an  all-wise  Providence,  it  could 
be  obliterated  from  the  face  of  the  earth,  I 
should  consider  the  achievement  as  most 


glorious  and  beneficent  to  mankind  ;  and 
trusting  in  the  benevolent  purposes  of  that 
overruling  guardianship,  I  cannot  doubt  that 
the  day  will  come,  when  all  mankind  will 
be  prepared  to  enjoy,  and  will  therefore 
enjoy,  civil,  religious,  and  personal  liberty 
and  light.  But  I  apprehend  that  day  is  not 
our  day.  I  have  no  hope  of  living  to  see  even 
Kentucky  a  free  State.  To  cease  peacefully 
or  advantageously  here,  slavery  must  run  its 
natural  course  and  wear  out.  And,  if  let  alone 
— if  neither  increased  by  importations,  nor 
tampered  with  by  fanaticism — it  will  run  its 
race  in  Kentucky  and  find  its  appropri 
ate  grave,  in  its  appointed  time,  as  certainly 
as  wisdom,  benevolence,  and  power  presidfe 
over  the  destinies  of  men.  Its  natural  life 
may  be  longer  or  shorter;  but,  sooner  or  later, 
its  doomed  death  is  certain .  I  arn  not  for  trying, 
by  empirical  patent  medicines,  to  prolong  its 
artificial  life,  or  hasten  a  premature  and  con 
vulsive  death.  But  I  would  administer  such 
remedies  as  may  make  it  as  sound  and  health 
ful  as  it  is  capable  of  being,  as  long  as  it  is 
destined  to  exist.  For  reasons  which  I  will 
explain  on  more  proper  occasions,  I  am  op 
posed  to  all  attempts  to  provide  in  the  new 
Constitution,  for  a  prospective  system  of  Eman 
cipation.  At  the  same  time,  I  am  opposed  to 
doing  or  suffering  to  be  done,  any  thing  that 
will  increase  the  evils  or  jeopard  the  soundness 
of  slavery  as  it  now  exits  among  us.  I  am, 
therefore,  in  favor  of  preventing  the  importa 
tion  of  more  slaves  from  abroad  by  some  fund 
amental  provision,  which  will  be  supreme  and 
inviolate.  And,  for  this  policy,  I  will  briefly 
suggest  the  following  principal  reasons,  here 
after  to  be  elucidated  and  enforced  on  more 
eligible  occasions: 

1st.  The  non-importation  policy  has  been 
adhered  to  by  our  in  other,  Virginia,  ever  since 
1778;  with  the  approbation,  of  course,  of  her 
statesmen  and  people,  headed,  too,  by  such 
patriots  as  Washington,  Jefferson,  Madison, 
Patrick  Henry,  Marshall,  and  Monroe.  This 
is  strong  proof  of  its  wisdom. 

2nd.  It  has,  in  some  degree,  and  with  vari 
ous  sanctions,  been  persisted  in  by  Kentucky 
ever  since  she  became  a  State — and  was  made 
more  comprehensive  and  stringent  than  be 
fore  by  the  act  of  1833,  which  stood  the  test  of 
scrutiny  and  trial  for  fifteen  years,  and  was 
never  shaken  until  last  winter — when  it  was 
virtually  repealed  under  the  influence,  as  I 
think,  of  erroneous  conceptions  and  misguided 
feelings,  and  against  the  earnest  opposition  of 
all  your  representatives. 


MR.  ROBERTSON'S  ADDRESS  TO  THE  PEOPLE  OF  FATETTE. 


331 


3rd.  There  are  now  as  many  slaves  in  our 
State  as  the  best  interests  of  slave-holders 
themselves  would  allow;  the  importation  of 
more  would  only  reduce  the  value  of  the  servi 
ces  of  those  we  now  have,  and  tend  to  make 
slaves  worse  and  their  tenure  less  secure  and 
comfortable;  and,  hence,  northern  abolitionists 
would  be  pleased  with  that  result,  and  there 
fore  they  favor  the  policy  of  increasing  the 
number  and  circumscribing  the  theater  of 
slaves  in  all  the  slave-holding  States. 

4th.  As  the  law  now  stands,  persons  who 
wish  to  buy  slaves  for  their  own  use  will  not 
generally,  if  at  all,  import  them,  because  the 
kind  they  would  buy  cannot  be  obtained  in 
any  other  State  cheaper  than  in  Kentucky — 
the  experiment  has  lately  been  tried  by  a  com 
pany,  whose  agent  has  just  returned  from 
Virginia  without  one  slave.  But  exporters  of 
horses,  mules,  (fee.,  may  exchange  their  stock 
for  likely  slaves  of  bad  and  mischeivous  qual 
ities,  because  these  they  may  buy  for  a  re 
duced  price,  which  will  afford  them  a  profit 
here — selling,  as  they  might,  the  slaves  ac 
cording  to  appearance,  without  communica 
ting,  and  perhaps  without  knowing  their  vi 
cious  propensities  or  other  bad  qualities.  And 
thus  our  slave  population  would  be  injuri 
ously  corrupted,  and  our  peace  and  security  en 
dangered.  And  thus  also  our  export  trade 
would  be  comparatively  unproductive  in 
consequence  of  the  importation  of  slaves  in 
stead  of  money,  and  slaves  too  that  would  not 
iucrease'the  aggregate  wealth  of  the  State,  but 
probably  reduce  it  by  a  resulting  reduction  in 
the  value  of  ^slave  labor.  The.  history  of  our 
domestic  trade  before  and  since  1833  proves  ihis 
deduction  undeniably. 

As  long  as  that  law  was  reasonably  observed, 
the  prosperity  of  the  State  increased  in  an 
unexampled  ratio.  In  seven  years  immedi 
ately  succeeding  the  enactment  of  it,  the  ag 
gregate  wealth  of  Kentucky  rose  from  one 
hundred  and  twenty-six  millions  to  about  two 
hundred  and  forty  millions  of  dollars! 

It  is  idle  to  argue  that  slaves  will  not  be 


— the  value  of  augmented  production.  Not 
only  also  does  slave  labor  tend  to  the  dispar 
agement  of  free  labor,  and  thereby  make  it 
comparatively  rare,  but  a  considerable  reduc 
tion  in  the  price  of  servile  labor  must  result 
in  the  starvation  or  expatriation  of  mechanics 
and  other  freemen,  whose  honorable  destiny 
it  may  be  to  live  and  feed  their  dependent 
wives  and  children  by  the  sweat  of  their  brow. 
And  as  these  useful  and  productive  citizens 
leave  us,  their  places  will  be  filled  by  worthless 
and  comparatively  unproductive  slaves,  and 
this  garden  of  the  great  West  may  finally  be 
monopolized  by  a  bloated  aristocracy,  whose 
staple  business  will  consist  of  breeding,  feed 
ing,  and  selling  negroes.  Besides,  as  this  gen 
eration  is  not  responsible  for  the  existence  of 
slavery,  it  ought  not,  by  the  voluntary  impor 
tation  of  more  slaves  from  abroad,  to  make 
itself  responsible  for  throwing  on  posterity 
an  accumulated  and  perhaps  unmanageable 
and  destructive  burden. 

6th.  Not  only  Virginia,  but  Maryland,  both 
Carolinas,  Georgia,  Alabama,  and  Mississippi 
have,  long  since,  adopted  the  importation  poli 
cy — and  Mississippi  has  inserted  it  in  her  Con 
stitution.  This  ought  to  prove,  even  to  the 
most  ultra  of  the  pro-slavery  men,  that  the 
policy  is  wise  and  must  be  beneficial  to  them, 
as  well  as  all  to  others.  And  if  any  of  them 


will  still   denounce   it   as 


an   "emancipation 


move," '  they  must  also  consider  the  Father  of 
his  Country,  and  other  illustrious  Virginians, 
emancipationists,  and  Virginia,  South  Caroli 
na,  Mississippi,  &c.,  emancipation  States! — 
This  is  all  humbug — which  ought  not  to  de 
ceive  or  mislead  honest  and  patriotic  citizens; 
and  of  this  you  ought  to  be  satisfied  when  you 
see  such  counties  as  Bourbon,  Mason,  Shelby, 
Jefferson,  Boyle,  Garrard,  Madison,  and  a  host 
of  others,  uniting,  some  of  them  almost  unani 
mously,  in  the  purpose  of  prohibiting,  in  the 
new  Constitution,  the  further  importation  of 
slaves. 

For  these,   as   well  as  other  reasons,  the 


imported  by  negro  traders  and  exporters  of  j  owners  of  slaves,  and  those  who  neither  own 


stock.  They  were  the  chief  importers  under 
the  laws  of  1794  and  1815,  both  of  which,  like 
the  existing  law,  authorized  importations  for 
use  and  not  for  sale;  and  they  will  yet  be  the 
almost  exclusive  importers — and  by  their  op 
erations,  the  currency,  as  all  experience  testi 
fies,  will  be  embarrassed  and  reduced  by 
large  investments  in  negroes,  and  by  extensive 
exchanges  of  stock  and  produce  for  slaves, 
instead  of  money,  imported. 


nor  wish  to  own  any,  ought  to  favor  non-im- 
portatiori.  If  it  be  the  interest  of  Kentucky 
that  slavery  should  be  perpetuated,  this  policy, 
however  fundamental,  would  not  frustrate,  but 
would  prudently,  tranquilly,  and  progressively 
promote  that  destiny  by  rendering  slave  prop 
erty  more  desirable  and  productive. 

The  emancipationist,  as  well  as  the  perpetu- 
alist,  should  advocate  the  same  policy  of  uon- 


5th.  As  labor  is  the  ultimate  test  of  the  price  importation  of  more  slaves  for  the  following 
of  products,  a  reduction   in  the  price  of  slave  reasons: 

labor,  resulting  from  increasing  the  number  of  lst-  If>  ia  climate  and  products,  Kentucky 
slaves,  will  produce  a  corresponding  reduc-  be  as  much  adapted  as  the  planting  and  more 
tionin  the  exchangeable  value  of  the  proceeds  Southern  States  to  slave  labor,  slavery 


of  that  labor:  and  though  a  buyer  or  hirer  of  a 
slave  may  have  something  less  to  pay,  yet  he 
will  not  be,  relatively,  a  gainer — for  the  value 
of  the  slave  and  of  his  service  will  be  reduced 
correspondingly  with  the  diminished  cost  of 
purchase  or  of  hire,  and  even  in  a  greater  ratio 


exist  here  as  long  as  it  shall  continue  there, 
and  no  legislative  expedient  can  prevent  it; 
and,  on  this  hypothesis,  surely  the  philanthro 
pist  would  desire  to  see  slaves  as  good  and  as 
comfortable  as  possible,  and  as  little  subject 
as  possible  to  be  torn  from  those  they  lov«. 


332 


MR.  ROBBRTSOJPS  ADDRESS  TO  THE  PEOPLE  OF  FAYETTE. 


2nd.  Emancipation  now  is  utterly  hopeless 
— public  sentiment  is  not  prepared  for  it — and 
even  if  it  were  otherwise,  no  permanent,  just 
and  practicable  scheme  could  be  devised  until 
the  number  of  slaves  shall  be  considerably 
diminished- — and  this  can  be  effected  only  by 
non-importation  and  voluntary  exportation. 
If  this  generation,  or  its  successor,  be  destined 
to  see  the  day  of  universal  freedom  in  Ken 
tucky,  the  dawn  of  that  day  will  have  been 
preceded  by  non-importation. 

3rd.  If  it  be  the  interest  and  destiny  of  Ken 
tucky  to  get  rid  of  slavery,  that  result  will  be 
accomplished  by  non-importation  more  certain 
ly,  more  satisfactorily,  and  more  speedily  than 
in  any  other  mode.  On  the  hypothesis  sugges 
ted,  public  sentiment,  backed  by  interest,  would 
soon  begin  to  converge  to  that  point,  and  the 
ultimate  result  would  be  accelerated  by  antici- 


the  public  treasury,  and  thus  paralyze  and 
render  unequal  and  contemptible  any  more 
legislative  enactment  prohibiting  importations. 
If  non-importation  be  right — it  must  be  right 
to  secure  the  enforcement  of  it;  and  it  must 
be  as  right  and  proper  to  secure  this  by  the 
Constitution  as  any  thing  else  that  should  be 
secured  inviolate.  And,  as  history  abundantly 
proves,  he  cannot  be  practically  in  favor  of 
the  act  of  1833,  who  would  even  disapprove  a 
constitiitional  provision  to  the  same  effect. 
If  it  should  be  found  inconvenient,  the  people, 
Tinder  the  clause  authorizing  special  amend 
ments,  could,  and  soon  would  strike  it  out. 
The  only  object  of  inserting  it  in  the  Consti 
tution  is  to  place  it  above  legislative  caprice, 
and  make  it  stable  and  uniform  as  long  as 
public  sentiment  shall  approve  it. 

Now,  why  cannot  all  good  and  wise  men — 


pation.     This,  I  think,  might  be  made  evident  |  all  who  wish  to  preserve  the  peace,  the  reason, 
by  various  considerations,  if  it  be  assumed  as  and   the   safety  of    the    Commonwealth — all 


true  that  slavery  is  incompatible  with  the  in 
terest  and  high  destiny  of  our  State.  If,  then, 
emancipation  be  prudent  and  practicable  at  any 
future  period,  non-importation  will  not  only 
be  indispensable,  but  will  certainly  lead  to  it. 
And  if  it  be  not  prudent  or  practicable  at  some 
future  day,  non-importation  will  improve  the 
quality  and  value  of  slave  property,  and  pio- 
mote  the  peace,  security  and  wealth  of  the 
State. 

I,  therefore,  am  not  of  any  extreme  party. 
I  am  for  a  Constitution  which  will  guaranty 
the  inviolability  of  slave  property — and  also 
prohibit  future  importations  of  slaves,  with  a 
sanction  that  will  uphold  the  prohibition.  I 
am  also  in  favor  of  a  provision  authorizing, 
like  the  Federal  Constitution,  partial  amend 
ments  without  involving,  as  our  present  Con 
stitution  does,  the  whole  organic  fabrick. 
And  in  this  I  am  sustained  by  the  Convention 
party,  who,  in  their  published  programme, 
recommend  such  a  provision.  I  would  not 
object  to  the  legislative  power  to  provide  for 
prospective  emancipation  whenever  three-fifths 
of  the  people  decide  in  favor  of  it;  which  ma 
jority,  or  something  near  it,  I  would  require 
for  any  other  amendment — believing  that  no 
Constitution  could  have  proper  stability  if  a 
bare  majority  could,  at  any  time,  change  it. 

I  have,  much  to  my  surprise,  however,  heard 
of  some  persons,  who,  whilst  they  aver  that  they 
approve  the  non-importation  policy,  are,  never 
theless,  somehow  or  other,  so  much  opposed  to 
its  being  made  fundamental,  as  to  have  re 
solved  to  vote  for  no  person  as  a  delegate  to 
the  Convention,  who,  though  coincident  with 
them  in  every  other  matter,  will  vote  to  embed 
non-importation  in  the  Constitution  so  as  to 
make  it  operate  effectually!  This  feeling  is, 
to  me,  inscrutable.  The  act  of  1833  was, 
for  years,  almost  a  dead  letter — the  acts  of 
1815  and  of  1794  were  mere  mockeries,  and 
had  no  operation.  Besides,  if  the  legislature 
hare  the  power,  it  will,  as  always  hitherto, 
legalize  individual  importations,  at  the  cost  of 


who,  prudent  and  firm,  of  whatever  party,  de 
sire  to  accomplish  the  best  of  practical  ends, 
and  to  not  lose  even  these,  as  well  as  more, 
by  recklessly  attempting  what  is  either  unat 
tainable  or  unreasonable — why  cannot — why 
will  not  all  such  men  unite  on  the  foregoing 
platform? 

Emancipation,  prospective  or  immediate,  in 
my  judgment,  is  not  the  true  or  proper  issue; 
and  I  do  seriously  apprehend  that  the  agita 
tion  of  it  by  pro-slavery  men  or  emancipation 
men  would  result  in  the  defeat  of  the  non-im 
portation  policy  and  in  the  production  of  per 
nicious  passions  and  disorganizations  which 
the  forlorn  wisdom  of  an  age  may  not  cure. 
The  late  Convention  at  Frankfort,  as  I  un 
derstand,  proposed  to  waive  that  issue  and  in 
sist  only  on  non-importation  and  the  right  to 
adopt  special  amendments  of  the  Constitution. 

I  believe  that,  in  their  sober  senses,  a  large 
majority  of  the  people  would  co-operate  in 
preserving  the  peace  and  guarding  the  security 
of  the  State,  by  uniting  on  the  only  safe  or 
practicable  point  of  concurrence,  whereby  all 
would  be  finally  benefited  and  none  would 
surrender  anything  of  principle  or  of  attaina 
ble  interest.  It  seems  plain  to  me,  indeed 
self-evident,  that  all,  whose  paramount  ob 
ject  is  their  country's  welfare,  should  unite  on 
the  non-importation  policy,  and  thereby  give 
repose  to  society,  stability  to  our  policy, 
and  security  to  our  institutions.  And  then 
also  the  people,  looking  dispassionately  at 
other  and  more  fundamental  issues,  may  pru 
dently  select,  throughout  the  State,  their  best 
and  most  trustworthy  citizens  to  the  Conven 
tion — without  doing  which  they  cannot  expect 
a  good  or  safe  Constitution. 

Will  it  be  prudent  or  safe  for  those  who 
may  be  opposed  to  emancipation  in  any  form 
or  at  any  time,  to  oppose  the  non-importation 
policy  merely  because  others,  who  have  been 
characterized  as  emancipationists,  have  re 
solved  to  support  it  arid  are  willing  to  com  - 
promise  upon  that  basis?  I  could  not  approve 


MB.  ROBERTSON'S  ADDRESS  TO  THE  PEOPLE  OP  FAYETTE. 


333 


such  a  course.  I  would  prefer  to  go  for  my 
country  and  its  peace,  even  at  the  expense  of 
some  individual  preference  as  to  a  matter  of 
controverted  policy.  But  surely  no  patriot 
ought  to  oppose  a  wholesome  measure  only 
"because  persons,  of  whom  he  may  feel  jealous, 
would  concur  with  him  in  adopting  it. 

Many  others,  and  some  of  them  more  radi 
cal  matters,  will  be  considered  and  settled  by 
the  coming  Convention.  As  I  cannot,  in  this 
mode  of  communication,  fully  notice  any  of 
these  important  subjects,  I  shall  not  now  at 
tempt  it;  but  will  cheerfully  and  candidly  ex 
press  my  opinions  as  to  any  or  all  of  them  on 
more  appropriate  occasions. 

But  there  may  yet  be  some  danger  that  the 
stultifying  topic  of  negroes,  bond  and  free,  may 
be  suffered  to  overrule  every  other  subject, 
however  important;  and,  in  that  event,  not 
concurring  with  the  ultras  of  either  of  the  ex 
treme  and  uncompromising  wings  of  an  un 
necessarily  belligerent  line,  I  might  be  placed 
between  two  consuming  fires;  but,  I  would 
still  wish  to  be  an  humble  mediator;  and, 
whether  heeded  or  not,  should  enjoy  the  con 
solations  assured  to  the  "peace  maker."  If 
some  impracticable  persons  will  still  strive  to 
produce  an  unreasonable  excitement  and  an 
unblessed  organization  on  what  now  seems  to 


be  a  barren  and  gratuitous  issue,  it  will  be 
seen  how  far  the  real  people  of  Eayette  will 
approve  or  disapprove  the  effort.  But  I  do 
earnestly  hope  that  extremists  of  all  sorts  will 
prudently  cool  down  into  a  considerate  moder 
ation  and  forbearance,  and  that  finally,  all,  or 
a  large  majority  of  the  sovereign  people,  will 
unite,  as  patriots  and  brothers,  in  the  solemn 
work  of  reconstructing  our  organic  system. 

I  have  hitherto  stood  quietly  by,  reposing  on 
my  own  fixed  principles;  and,  with  a  pure  con 
science  and  an  upright  purpose,  there  I  expect 
to  stand  or  fall.  I  should  be  pleased  to  re 
ceive  the  support  of  all  of  every  party  and  de 
nomination  who  concur  in  those  priciples  and 
are  willing  to  stand  on  the  platform  laid  down 
in  my  speech  in  the  last  Legislature,  and 
herein  again  exhibited.  And  I  am  yet  to 
learn  why  I  mightnot  only  receive  but  reason 
ably  expect  the  aid  (in  every  form  in  which  it 
may  lawfully  be  given,)  of  all  parties  and  of 
all  individuals  who  concur  with  me  in  policy. 
Standing  under  the  unpatronized  flag  of  my 
own  principles  I  would  gratefully  accept  the 
nomination  and  support  of  all  those  Avho  are 
willing  to  stand  by  me  on  these  principles, 
and  uphold  the  same  or  a  kindred  banner. 

GEORGE  ROBERTSON. 


VALEDICTORY  ADDRESS. 


Extracts  from  the    Valedictory  Address  of  Mr.  '< 
Robertson,  as  Speaker  of  the  House  of  Rep-  i 
resentatives  of  the  Kentucky  Legislature,  at  i 
the  close  of  the  session  of  1851— 2. 
Gentlemen  of  the  House  of  Representatives: 

The  end  has  come.     We  are  about  to  part,  ( 
probably  never  to  meet  again — certainly  not  in 
our  present  associations. 

For  your  recorded  and  unanimous  approval 
of  my  conduct   in  the  position  to  which  your  j 
suffrages  called  me  at  the  beginning  of  this  j 
session,  I  tender  you,  collectively  and  individ 
ually,  my  cordial  acknowledgements.     I  had 
neither  wish  nor  motive  to  fill  this  arduous 
and  responsible  station — and,  in  occupying  it  i 
in  obedience  to  your  call,  I  made  a  sacrifice  of  j 
my  own  judgment  and  personal  interest.     I  j 
prefered  the  floor,  because  thero  I  might  have  j 
been  able  to  do  more  for  my  constituents  and  i 
more  in  my  own  behalf  than  I  could  hope  to  i 
do  in  the  confinement  of  this  chair.      Here,  j 
however,  I  have  faithfully  endeavored  to  do  j 
my  whole  duty  as  your  presiding  officer.     The  j 
only  reward  I  desired  or  could  have  expected,  | 
was   the  approbation  of  my  own  conscience  j 
and  of  your  judgments.  These  I  enjoy— the  first  j 
I  know — the  last  I  hope.     And  now,  in  this  j 
closing  scene  of  an  eventful  drama,  before  I 
pronounce  my  last  duty  of  dis§<»lving  this  body 
and   all   oar  relations  on  this  floor,  I  invoke 
your  attention  to  some  valedictory  suggestions 
which  I  think  the  occasion  allows,  and  justice 
to  myself,  us  well  as  to  you  and  my  country, 
demands. 

In  attempting  this  delicate  task,  I  desire  to 
say  nothing  unbefitting  the  dignity  of  this 
chair,  the  decorum  of  this  House,  or  my  own 
proper  relations  to  principles  or  to  men,  hith-  j 
erto,  now,  or  hereafter.  My  chief  purpose  is  to 
place  myself  rectus  in  curia — right  before  you, 
and  right  before  the  world,  concerning  certain 
events  which  occurred  during  our  present  ses 
sion.  This  I  would  have  been  pleased  to  do 
on  some  more  appropriate  occasion — but  this 
having  been  prevented  by  my  position  in  this 
chair,  I  trust  that  a  brief  allusion  to  a  few 
personal  topics  at  this  parting  moment,  \vill 
not  be  deemed  unreasonable  or  indelicate. 

1.  If  my  election  to  this  chair  has  been  felt 
as  a  wound  to  others  who  desired  to  fill  it 
themselves  or  would  have  preferred  some 
younger  man,  I  am  sorry  for  it.  I  had  no 
voluntary  agency  in  it.  I  was  placed  here  with 
out  my  solicitation  and  against  my  will,  as  I 
now  declare,  and  as  I  thought  you  all  knew.  I 
regret  this  more  than,  perhaps,  I  ought. — 
But  I  felt  that  I  could  not  honorably  or  con 


sistently  avoid  it.  As  many  of  you  know, 
I  did  all  I  could  to  prevent  it.  If,  by  a  re 
luctant  acceptance  of  the  place,  I  have  pro 
voked  the  jealousy  of  any  human  being,  the 
fault  is  not  mine,  and  the  wrong  lies  not  at  the 
door  of  my  conscience. 

2.  In  the  organization  of  the  standing  com 
mittees,  I  may  not,  as  no  other  Speaker  ever 
did  or  could,  have  given  universal  satisfation. 
I  could  not  be  expected  to  know  the  exact 
aptitudes  of  all  the  members — and  if  I  had 
possessed  that  rare  knowledge,  it  could  not  be 
presumed  that  I  should  agree  with  every  mem 
ber  in  his  self-estimation.  I  employed  unusual 
care  in  ascertaining  the  peculiar  qualifications 
of  the  members,  and  with  all  the  information 
I  was  able  to  obtain,  I  made  those  arrange 
ments  which  I  considered  best  for  the  House, 
and  best  for  the  country.  And  though  I  may 
not,  in  every  instance,  have  made  precisely 
the  most  fortunate  location,  I  am  now,  after 
the  experience  of  two  months,  as  well  satisfied 
with  that,  as  with  any  other  public  act  of  my 
life.  A  few  persons  objected  that  I  gave  the 
Democrats  an  unjust  share  of  influence.  To 
this  I  now  reply,  that  I  felt  it  to  be  my  duty 
to  be  impartial  in  the  execution  of  the  trust 
confided  to  me — to  endeavor  to  be  the  organ 
of  the  House,  and  not  of  one  portion  of  it  to  the 
exchision  or  degradation  of  another — and,  in 
the  exercise  of  the  patronage  of  the  chair  i 
did  no  more  than  distributive  justice — indeed 
I  did  not  give  to  the  Democratic  party  a  share 
of  power  fully  equal  to  its  ratio  of  numbers. 

In  the  organization  of  the  committee  on 
Federal  Relations,  my  motives  and  purposes 
seem  to  have  been  misunderstood  by  some. 
At  this  I  was  much  surprised.  To  discharge, 
in  a  proper  manner,  the  duties  of  that  position, 
and  those  also  of  a  member  of  the  committee 
on  the  Code,  to  both  of  which  I  allotted  the 
the  same  gentleman,  was  as  much  as  any  one 
man  could  be  expected  to  do — and  I  consid 
ered  those  two  as  among  the  most  important 
committees  of  the  House.  Had  I  been  on  the 
fioor,  I  would  rather  have  been  chairman  of 
the  committee  on  Federal  Relations  than  to 
have  occupied  the  same  position  on  any  other 
committee.  A  full,  prudent  and  orthodox 
report — a  report  which  might  have  been  unan 
imously  endorsed — on  the  character,  the  value, 
and  the  destiny  of  the  Union — on  the  heresy 
of  nullification — on  the  monstrous  absurdity 
of  secession  as  a  constitutional  pretension,  or 
any  thing  else  than  a  revolutionary  act — on 
the  history  and  constitutional  principles  of  the 
tariff  and  slavery  agitations — and  on  the 


TO  THE  HOUSE  OF  REPRESENTATIVES. 


335 


wisdom  of  the  "Compromise,"  as  a  final  and 
equal  adjustment  of  those  sectional  controver 
sies — guch  a  report  would  have  become  Ken 
tucky,  and,  if  well  done,  would  have  told  for 
its  author,  his  State,  and  the  Union,  now  and 
in  all  time  to  come.  It  was  expected  of  Ken 
tucky,  and  would  have  placed  her  where  she 
ought  to  stand — as  the  chief  pacificator  and 
conservator  of  our  common  country.  The 
member  I  selected  for  that  great  work  was,  in 
my  opinion,  as  well  suited  to  it  as  any  other 
I  could  have  chosen,  and  I  supposed  that  he 
would  delight  to  perform  it.  But  he  seems  to 
have  considered  such  a  report  as  I  have  indi 
cated,  or  any  report,  unnecessary. 

3.  The  political  atmosphere — too  often  in 
fected  by  the  pestilent  breath  of  selfish  and 
unscrupulous  demagogues — has  been  lately 
disturbed  at  the  capitol,  by  rumors  which, 
though  artfully  vague  and  intangible,  were 
designed  to  misrepresent  my  poor  opinions 
niid  conduct  concerning  domestic  slavery.  To 
rectify  honest  error,  if  any  such  exist,  and  to 
leave  no  honorable  excuse  for  delusion  in  fu 
ture,  I  consider  it  proper  now  to  take  notice  of 
a  subject  iu  which  I  had  hitherto  presumed 
that  the  public  would  feel  no  interest.  Duty  to 
you,  as  well  as  to  myself,  requires  it. 

On  no  institution,  domestic  or  political, 
have  I,  ever  since  I  was  a  man,  thought  with 
a  more  intense  and  constant  anxiety  than  on 
that  of  African  slavery  in  our  country;  and  on 
no  subject  of  social  organization  or  economy 
have  I  written  or  spoken  more  frequently, 
more  explicitly,  or  with  a  consistency  more 
uniform  and  undeviating.  My  sentiments  in 
relation  to  it  in  all  its  bearings,  have,  for  the 
last  30  years,  undergone  no  material  change; 
and  I  have  never  concealed  or  dissembled  any 
opinion  or  principle  I  held  on  any  subject  of 
public  concern. 

I  have  never  believed  that  the  enslavement 
of  the  black  can  be  a  blessing  to  the  Avhite 
race;  I  do  not  esteem  slavery,  in  itself,  an  in 
dividual  or  a  social  good.  But,  whatever  may 
be  said  of  its  morality,  national  or  personal,  I 
have  a  strong  hope  that  American  slavery  will 
eventuate  in  the  ultimate  civilization  of 
doomed  Africa — and  in  the  aggregate  welfare 
of  mankind.  I  am  not  sure  that  it  has  not 
been  sanctioned  by  Omniscience  as  a  providen 
tial  mean  of  promoting  human  progress  and 
amelioration.  And  I  have  never  doubted  that 
when  the  white  and  the  black  races  live  to 
gether,  as  they  HOW  co-exist  in  Kentucky,  the 
welfare  of  the  inferior  and  the  security  of  the 
superior  race  would  both  be  promoted  by  the 
subordination  of  the  former  to  the  tutelage 
and  dominion  of  the  latter.  Having  gradually 
'•grown  with  our  growth,  and  strengthened 
with  our  strength,"  slavery  cannot  be  speedi 
ly  eradicated  without  convulsion.  Whenever 
all  mankind  shall  become  civilized,  then  all 
may  be  free.  Until  some  such  approximation 
to  equality  and  ultimate  destiny,  slavery,  in 


some  form  may  be  expected  to  exist;  its  total 
extirpation,  to  be  desirable,  must  be  the  spon 
taneous  result  of  a  moral,  peaceful,  and  pro 
gressive  causation.  If  it  be  the  will  of  Prov 
idence  that  it  shall  ever  cease  in  Kentucky,  it 
will  decline  gradually  into  a  natural  death  or 
to  such  a  state  of  decay  as  to  induce  general 
acquiescence  in  a  law  of  the  land  anticipating 
that  mode  of  extinction.  Emancipation  by 
law,  in  any  just,  satisfactory,  or  even  practical 
mode,  has  hitherto  been,  and  yet  is  altogether 
hopeless  in  Kentucky  for  years  to  come.  This, 
in  my  judgment,  is  the  view  of  enlarged  be 
nevolence,  comprehensive  patriotism,  and  en 
lightened  statesmanship.  It  has  always  seemed 
to  me  that  our  true  policy  is  to  let  the  problem 
of  slavery  work  out  its  own  solution  without 
intestine  commotion.  If  thus  allowed  to  run 
its  natural  course  under  the  guidance  only  of 
interest,  reason,  and  the  moral  sense,  time 
would,  in  the  only  congenial  season,  mark  its 
destiny — and,  whatever  thnt  might  be,  all 
would  be  peacefiil  and  right.  If,  as  many  phi 
lanthropists  esteem  it,  slavery  in  Kentucky  be 
a  curse,  premature  and  compulsive  emancipa 
tion  would,  as  I  think,  be,  to  both  races,  a 
greater  curse.  Consequently,  holding  these 
opinions,  I  have,  on  all  occasions,  opposed 
any  agitation  of  the  question'  of  emancipation, 
instant  or  prospective — and  have  probably 
suffered  a.s  much,  by  that  course,  .is  any  other 
citizen. 

To  give  as  much  stability  t;nd  security  to 
slavery  here  as  possible,  as  long  as  it  shall  con 
tinue  among  us,  and  to  promote  the  wealth 
and  true  political  economy  of  the  State,  I  was 
in  favor  of  the  non-importation  policy  of  1833, 
which  has  been  sustained,  for  ninny  years,  by 
a  majority  of  the  slnveholding  States  of  the 
Union,  and  was  initiated  and  long  continued 
in  Kentucky  by  a  majority  of  wise  and  good 
men  of  all  classes  and  denominations.  And 
to  prevent  the  discussion  of  slavery  in  any 
form  on  the  stump  and  in  the  halls  of  legisla 
tion,  I  would  have  been  pleased  to  see  that 
principle  imbedded  in  the  Constitution.  To 
prevent  convulsion  find  assure  progressive  im 
provement  in  the  fundamental  law,  I  also  ad 
vocated  a  provision  authorizing  specific  amend 
ments  by  a  conservative  majority,  without  the 
delays,  expense,  and  hazai-ds  of  is.  convention 
with  power  to  change,  at  once,  the  whole 
fabric  of  the  Constitution.  This  theory  has 
been  illustrated  by  the  Constitution  of  the 
United  States,  and  those  also  of  nearly  every 
State  in  the  Union  except  Kentucky.  It  has 
been  tried  in  nearly  all  the  slaveholding  States. 
and,  instead  of  inviting,  it  has  repressed  agi 
tation  on  the  subject  of  slavery, because,  when 
there  is  a  known  majority  against  emancipa 
tion,  there  will  be  no  danger  of  the  agitation 
of  a  specific  amendment  for  that  hopeless  pur 
pose  only. 

I  have  often,  and  on  all  proper  occasions, 
denounced  abolitionism  in  ull  its  forms.  And 
I  have  also  denounced  all  interference,  by 


336 


VALBDICTORY  ADDRESS  DELIVERED 


Congress,  with  the  domestic  relations  of  the 
States,  or  even  of  the  Territories  over  which 
it  exercises  legislative  pOAver.  In  1819,  on  a 
bill  introduced  by  myself  to  organize  the  Ter 
ritorial  Government  of  Arkansas,  an  attempt 
was  made  by  the  north  to  interdict  slavery  in 
that  Territory.  A  protracted  and  exciting 
discussion  ensued;  and,  on  that  occasion,  I  ar 
gued  against  the  principle,  justice  and  policy 
of  such  an  interdict,  and  predicted  the  conse 
quences  which  have  followed  the  persevering 
efforts  to  adopt  the  "Wilmot  Proviso."  In 
1820  I  opposed  in  Congress  the  attempted  re 
striction  on  Missouri.  In  1848-9,  I  again  de 
nounced  all  such  efforts  as  the  offspring  of 
blind  fanaticism  and  of  ambition  of  political 
power  and  aggrandisement — as  inconsistent 
with  philanthropy — as  unjust  to  slaveholders 
— as  perilous  to  the  Union — and  as  in  open 
conflict  with  the  American  doctrine  that  every 
free  people  ought  to  regulate  their  own  policy, 
and  especially  their  own  domestic  relations. 

In  all  I  ever  wrote  or  uttered  on  the  subjcet 
of  slavery,  the  foregoing  sentiments  were  em 
bodied;  and  nothing  I  ever  said  or  did  can  be 
shown  to  conflict  with  them  in  the  slightest 
degree.  On  this  subject  I  challenge  scrutiny, 
in  this  presence  and  elscAvhere. 

4.  A  more  delicate  subject  remains  to  be 
touched.  It  happened  to  be  my  fortune  to  be 
among  those  from  whom  a  choice  of  two  Sen 
ators  in  Congress  was  made.  And  in  those 
contests  I  was  made  to  suffer — most  unjustly, 
as  I  must  be  allowed  to  think — not  only  on 
the  ground  already  alluded  to,  but  still  more 
severely  for  presuming  to  vote  for  one  distin 
guished  Whig  against  another! 

I  trust  that  I  will  be  pardoned  for  here 
making  personal  allusions  which,  under  other 
circumstances,  might  savor  of  egotism,  and  of 
indelicacy  to  others. 

When  a  small  boy — a  native  born  of  Ken 
tucky — I  was  doomed  to  orphanage.  At  the 
age  of  19  I  was  married  and  commenced,  the 
business  of  life,  without  a  dollar  on  earth.  At 
the  age  of  25  I  was  elected  to  Congress,  and  was 
twice  successively  re-elected.  I  was  pleased 
with  political  life,  and  was  cheered  with  en 
couraging  prospects  of  success.  But  para 
mount  duties  to  a  young  and  growing  family 
required  me  to  stifle  all  political  ambition  and 
to  resign  my  seat  for  my  entire  third  term.  I 
had  but  just  reinstated  myself  in  the  practice 
of  my  profession  when,  in  1822,  my  fellow 
citizens  of  Garrard,  required  me  to  come  to 
the  State  Legislature  on  the  occasion  of  the 
relief  agitation.  Having  thus  embarked  on  a 
tempestuous  sea,  I  felt  it  my  duty  to  ride  out 
the  storm  of  "Relief"  and  "Old  and  New 
Court,"  which  never  ceased  until  1827.  For 
five  years  I  devoted  myself,  at  great  pecuniary 
sacrifice,  on  the  stump,  through  the  press,  and 
in  the  legislative  halls,  to  the  discussion  of  the 
great  questions  which  then  agitated  Kentucky 
to  convulsion  and  almost  to  revolution. 


In  1828  I  accepted  the  appointment  of 
Secretary  of  State  under  Gov.  Metcalfe,  in 
tending  to  remove  to  Frankfort,  where  1  ex 
pected  to  make  a  comfortable  independence  in 
a  few  years  by  a  practice  in  the  superior  courts, 
which  then  promised  to  be  unusually  produc 
tive.  But,  in  December  of  that  year,  I  was 
prevailed  on  against  my  own  judgment,  and  at 
the  hazard  of  much  sacrifice  of  interest  and 
liberty,  to  accept  a  seat  on  the  appellate  bench, 
with  a  salary  of  not  more  than  $1,000  in  legal 
currency.  In  that  unwelcome  office  I  labored 
nearly  fourteen  years,  with  scarcely  ever  the 
leisure  of  a  "Cotter's  Saturday  night."  1 
never  sought  -an  office  in  my  life,  though  I  had 
been  offered  some  of  the  best  offices  under  the 
federal  government;  but  acceptance  being  in 
consistent  with  domestic  comfort  and  obliga 
tion,  I  had  declined  them.  In  the  memorable 
"New  Election"  contest  in  1816-17,  I  had 
staked  myself  as  one  of  a  forlorn  hope  against 
a  powerful  majority,  led  by  some  distinguished 
men  who  have  since  been  good  Whigs.  In 
1843  I  resigned  the  Chief- Justiceship  of  Ken 
tucky,  and  resumed  the  practice  of  law,  by 
which  I  have  since  made  the  chief  portion  of  a 
small  estate,  sufficient  for  all  purposes  of 
rational  comfort  and  independence.  Thus 
having  subjected  myself  to  self-denial  and 
self-sacrificing  drudgery  for  thirty  years,  and 
finding  myself  at  last  in  a  condition  in  which  I 
could  afford  to  occupy  a  seat  in  the  Senate  of 
the  Union,  I  presumed  to  say,  for  the  first  time, 
that  if  the  Legislature  should  think  fit  to  elect 
me,  I  would  feel  it  an  honor,  and  endeavor  to 
deserve  it  by  faithful  service  not  unworthy  of 
myself  or  my  distinguished  State.  This  was 
my  position  when  1  came  here.  I  asked  no 
member  for  his  support — I  resorted  to  none  of 
the  accustomed  modes  of  conciliating  favor.  I 
stood  perfectly  still,  awaiting  the  spontaneous 
decision  of  the  people's  representatives. — 
Looking  at  the  history  of  the  State  and  the 
fortune  and  destiny  of  its  public  men,  I  did 
really  feel  that  the  time  had  come  when 
/  might  be  a  National  Senator. 

I  soon  found  that  friends  of  two  others  were 
resolved  on  running  each  of  them.  I  did  not 
feel  it  my  duty  longer  to  give  back.  And  my 
friends  determined  to  nominate  me.  One  of 
those  others  was  not  nominated  at  the  start — 
but  most  of  his  friends  voted  against  me;  and 
when  one  of  the  three  Whig  nominees  was 
withdrawn,  they  nominated  another  Whig. 
Foreseeing  the  unpropitious  results  of  such  a 
contest,  I  determined  not  to  be  responsible  for 
them,  and  directed  the  withdrawal  of  my  name 
in  defiance  of  the  opposing  wishes  and  counsels 
of  many  of  my  friends.  My  vote  afterwards 
subjected  me  to  proscription  by  many  old  and 
constant  friends,  some  of  whom  had,  in  the 
first  instance,  been  for  me  against  any  person 
contemplated  as  a  candidate.  Not  to  com 
plain,  but  only  to  illustrate  the  force  of  that 
feeling  I  here  state — what  you  all  know — that, 
after  the  vote  alluded  to,  some  of  my  oldest 


TO  THE  HOUSE  OF  REPRESENTATIVES. 


33.7 


frienda— my  own  senator  among  others — un 
der  their  obligations  to  conscience,  to  constit 
uents,  and  to  their  country,  voted  against  me 
on  all  occasions  and  for  every  body  who  was 
put  up  against  me.  How  far  this  proscription 
for  the  same  liberty  of  opinion  which  they 
themselves  exercised,  may  promote  the  har 
mony  or  increase  the  strength  of  the  now  dom 
inant  party,  time  may  tell.  According  to  my 
creed,  it  is  hardly  consistent  with  justice, 
policy,  or  the  spirit  of  our  free  institutions; 
and  I  fervently  hope  that,  though  it  may  have 
victimized  me,  it  may  here  pause  and  not  be 
come  contagious. 

In  casting  the  pregnant  vote,  I  was  influ 
enced  by  no  other  consideration  than  a  regard 
to  distributive  justice,  the  harmony  of  the 
Whig  party,  and  my  sense  of  duty  to  my  im 
mediate  constituents.  Had  I  submitted  myself 
to  personal  or  to  selfish  motives,  my  vote 
might  have  been  very  different.  I  did  only 
what  I  felt  to  be  my  clwty,  as  well  as  privilege 
— and,  so  believing,  no  fear  of  ostracism 
could  have  changed  my  course. 

In  the  election  of  Mr.  Clay's  successor,  my 
friends  were  consequently  placed  between  two 
waves.  Nevertheless,  they  failed,  as  they 
and  I  believe,  by  an  accident  which  might  not 
occur  again  in  a  thousand  trials. 

Had  not  this  accident  occurred,  the  result 
would  have  been  altogether  different  from 
what  it  was — as  many  of  both  parties  of  this 
House  confidently  believe.  But  notwithstand 
ing  all  the  combinations  and  accidents  which  led 
to  the  actual  result,  I  acquiesce  cheerfully  in  it. 

Perhaps  it  is  best — best  for  me — and  best 
for  the  country.  The  people's  representatives 
arc  presumed  to  know  who  are  the  best  quali 
fied  to  sustain,  in  the  National  Senate,  the 
honor  of  Kentucky  and  the  integrity  of  the 
Union.  And  I  bow  to  their  decision,  howev 
er  brought  about.  1  have  thought  proper  to 
say  what  I  have  just  said  to  show  that  my 
name  was  not,  at  my  instance  or  for  any  fac 
tious  or  hopeless  purpose,  obtruded  on  the 
Legislature  in  the  late  memorable  contests 
tor  seats  in  the  Senate  of  the  United  States. 
43 


Our  session,  gentlemen,  has  been  unusually 
eventful.  It  hag  produced  more  in  the  same 
time  than^any  which  ever  preceded  it. — 
Whether  our  constituents  will  be  greatly 
blessed  by  its  labors,  the  fruits  of  them  will 
soon  show.  It  is  but  an  act  ofjustice,  however, 
to  declare  that  patriotism,  industry  and  intel 
ligence  have  generally  signalized  your  delib 
erations.  And  now  about  to  separate,  I  fer 
vently  hope  that  we  may  all  part  in  peace  and 
friendship.  Should  it  be  the  fate  of  any  of  us 
never  to  meet  again  on  earth,  may  we  cherish 
no  unkind  memories  of  the  past.  For  myself, 
I  can  sincerely  declare  that,  whatever  may 
be  the  future  destiny  of  any  or  all  of  you,  I 
shall  ever  sjonpathize  in  your  good  fortune. 

May  you  all  return  in  good  health  to  your 
homes,  and  meet  the  smiles  of  your  families, 
constituents,  and  friends.  And  may  our  beloved 
country  grow  and  prosper  under  our  legislation. 

This  is  a  momentous  age — an  age  not  of 
transition  only,  but  of  wonderful  progress  and 
development.  And  the  position  of  Kentucky 
is  peculiarly  interesting  and  responsible.  This 
land  of  promise — this  western  world,  may 
soon  wield  the  destinies  of  America,  and, 
through  its  power  and  example,  those  of  all 
mankind.  Kentucky — tli9  first  born  of  the 
C/.s-Alleghcnian  States,  and  the  mother  of 
some  of  them — may,  by  right  principles  and 
conduct,  save  or  destroy  institutions  most  glo 
rious  in  the  past  and  most  hopeful  for  the  fu 
ture.  Let  her  cling  to  her  motto — let  her 
preserve  untarnished  her  escutcheon — let 
her  maintain  her  national  position — and 
all  will  be  well.  But,  whatever  may  betide 
us,  may  none  of  iis  live  to  see  the  broad  flag 
of  the  Union  bow  to  faction,  or  the  hull  of  the 
constitution  of  Washington  split  into  fragments. 
May  it  be  our  better  destiny  to  live  long 
enough  to  behold  that  noble  ship  survive,  un 
hurt,  the  storm  which  besets  it,  and  that  bright 
banner  float  higher  and  higher,  until  it  shall 
be  the  guardian  emblem  of  the  civilized  earth. 

I  shall  never  again  occupy  this  chair,  or  a 
seat  on  this  floor.  1  now  take  my  leave  of 
both  forever.  Farewell. 

This  House  is  now  adjourned  sine  die. 


PRELECTION, 


Pursuant  to  public  notice,  a  large  portion  of 
the  citizens  of  the  city  of  Lexington  and  county 
of  Fayette  who  are  opposed  to  the  adoption  of 
the  new  Constitution,  met  at  the  City  Hall  on 
Saturday  morning,  the  2d  inst.,  at  11  o'clock. 
James  O.  Harrison,  Esq.,  was  called  to  the 
Chair.  The  object  of  the  meeting  being  ex 
plained,  as  being  for  the  thorough  organiza 
tion  of  the  friends  of  Constitutional  Liberty 
in  this  city  and  county,  and  the  formation  of 
an  association  opposed  to  the  adoption  of  the 
new  Constitution  ;  on  motion  a  committee  of 
four  was  appointed,  consisting  of  the  Hon. 
George  Robertson,  Wm.  O.  Smith,  Geo.  B. 
Kinkead,  and  Dr.  John  C.  Darby,  to  present  a 
suitable  plan  of  organization.  The  committee 
retired,  and  in  a  few  minutes  returned  and 
presented  the  following  resolutions. 

Resolved,  That  we  will  earnestly  and  firmly 
oppose,  by  all  such  means  as  may  become  ne 
cessary  and  proper,  the  adoption  of  the  new 
Constitution;  and  that  ,as  a  mean  of  effecting 
efficient  co-operation,  we  hereby  organize  our 
selves  into  an  association,  to  be  called  "  The 
friends  of  Constitutional  Liberty  in  Fayette 
County." 

Resolved,  That  our  friends  in  all  parts  of 
the  county  be  requested  to  organize  themselves 
as  soon  as  possible  for  the  work  before  them  ; 
and  employ  all  proper  means  for  disseminat 
ing  truth  on  the  great  subject  to  be  decided  at 
the  polls  in  May. 

Resoh-ed,  That  the  following  persons  be  ap 
pointed  officers  of  this  Association. 

President — James  O.  Harrison. 

Vice  Presidents — Jacob  Hughes,  Joseph 
Bryan,  Benj.  F.  Graves,  McCann,  R.  J.  Spurr, 
John  Cooper,  0.  D.  Winn,  Coleman  Graves, 
John  Lyle,  John  Q.  Innes,  James  Morrow, 
Geo.  W.  C-  Graves,  John  C.  Hull,  Wm.  Cooper, 
W.  M.  Atchison,  C.  C.  Moore,  Robert  Nutter, 
M.  C.  Johnson,  Elisha  Warfield,  sr.,  Thomas 


Hughes,  Thomas  Hemingway,  Richard  Chiles 
John  Chisham,  Ab'rn.  Bowman,  James  Sulli 
van,  J.  B.  Cooper,  Garrett  Watts,  Hiram  Shaw, 
P.  E.  Yeiser,  Wm.  Vanpelt,  Gen.  Wm.  Bryan, 
S.  S.  Grimes,  Dr.  G.  B.  Harrison,  James  Mc- 
Neill,  Daniel  Brink,  I.  N.  Yarnall,  H.  Lamme, 
Gen.  G.  W.  Darnaby,  Roger  Quarles,  Edward 
Hart,  Jacob  Hostetter,  J.  Glass  Marshall,  Col. 
J.  H.  Chrisman,  H.  Elgin,  John  Caldwell,  R. 
Courtney,  Talbott,  John  L.  Elbert. 

Vigilance  Committee — Dr.  B.  W.  Dudley, 
E.  S.  Broaddus,  A.  B.  Carroll,  J.  R.  Sloan,  E. 
W.  Hunt,  Geo.  R.  Trotter,  Dr.  John  C.  Darby, 
Jacob  Ashton,  Geo.  B.  Kinkead,  Elisha,  N. 
Warfield,  Levi  0.  Todd,  Dr.  S.  M.  Letcher. 

Secretaries— Wm.  H.  Brand,  S.  P.  Scott, 
Geo,  W .  Abernethy. 

The  resolutions  were  unanimously  adopt 
ed,  after  which,  the  meeting  adjourned  to  meet 
at  the  Court  House,  at  half-past  two  o'clock, 
to  hear  an  address  from  the  Committee. 

JAS.  O.  HARRISON,  President. 

W.  H.  Brand,  Secretary. 

Pursuant  to  adjournment,  the  Association 
met  at  the  Court  House  at  half-past  two  o'clock, 
when  the  Hon.  Geo.  Robertson  arose,  'and  af 
ter  a  few  preliminary  remarks,  in  which  he 
briefly  but  forcibly  recapitulated  the  objec 
tions  to  the  new  Constitution,  closed  by  read 
ing  the  following  address  which  was  unani 
mously  adopted. 

Upon  motion  of  Geo.  B.  Kinead,  5,000  co 
pies  were  ordered  to  be  printed  in  pamphlet 
form  for  circulation. 

W.  M.  O.  Smith  was  then  called  upon,  and 
in  a  short  speech  gave  his  reasons  for  opposi 
tion  to  the  new  Constitution.  His  brief  re 
marks  were  impressive  and  effective 

After  which  the  Association  adjourned. 
JAS.  0.  HARRISON",  Pres't. 

W.  H.  Brand,  Secretary. 


TO  THE  CITIZENS  OF  FAYETTE. 


Fellow  Citizens : — A  portion  of  the  citizens 
of  Kentucky  lately  assembled,  from  various 
quarters  of  the  State  at  the  capitol,  for  the 
purpose  of  organizing  "  the  friends  of  Consti 
tutional  Liberty"  in  opposition  to  the  adaption 
of  the  new  scheme  of  Government  proposed 
by  the  Convention  elected  to  revise  our  exist 
ing  Constitution.  The  day  of  their  assem 
bling  was  auspicious  to  a  happy  result,  On 
the  birth-day  of  Washington,  freemen  of  Ken 
tucky  met  together  in  council  to  assert  and 
maintain  the  principles  of  Washington;  on 
the  anniversary  of  the  commencement  of  the 
glorious  battle  of  Buena  Vista,  they  commen 
ced  a  civil  contest  far  more  eventful — a  battle 
of  civil  liberty— the  battle  of  the  Constitution 
— the  battle  of  Kentucky:  on  the  final  issue  of 
which  may  depend  the  destiny  of  our  distin 
guished  Commonwealth. 

In  conformity  to  a  suggestion  by  that  as 
sembly  we,  citizens  of  Fayette,  have  convened 
at  Lexington  to  pledge  our  zealous  co-opera 
tion  in  the  patriotic  work  it  has  proposed,  and 
briefly,  but  candidly,  to  address  eur  fellow 
citizens  of  the  county  on  a  subject  most  inter 
esting  to  us  all,  and  to  our  children  and  child 
ren's  children,  for  generations  to  come. 

To  be  free  is  the  natural  right,  as  well  as  the 
instinctive  desire,  of  all  civilized  men.  If  all 
men  had  the  absolute  liberty  to  do  whatever 
they  might  will  to  do,  no  man  could  be  secure 
in  the  enjoyment  of  any  right.  Therefore 
some  common  government  over  all,  and  with 
power  to  protect  each  in  the  enjoyment  of  the 
cardinal  rights  of  life,  liberty,  property  and 
civil  equality  against  a  dominant  party,  ' 


stituted  as  to  operate  as  a  wholesome  check  on 
the  others  ;  and,  by  .thus  preserving  a  con 
servative  equilibrium  of  power,  to  uphold  all 
guarantied  rights  against  unconstitutional 
encroachment  by  even  a  ruling  party  of  the 
people  themselves  No  limitation  on  legisla 
tive  power  would  be  effectual,  nor  any  guaran 
tee  of  life,  property,  or  liberty  of  speech  or  of 
conscience  availing,  without  a  Judiciary  armed 
with  authority  to  expound  and  administer 
all  law,  and  so  organized  as  to  be  able  and 
willing  to  do  justice  between  the  high  and  the 
low,  and  maintain  the  supremacy  of  the  Con 
stitution  in  defiance  of  the  seductions  of  pop 
ularity  or  the  terrors  of  power  in  an  ascendant 
party,  however  large  or  domineering.  This,  at 
last,  is  the  anchor  of  a  free  State — the  pallad 
ium  of  true  liberty  and  security.  For  want  of 
such  anchorage,  every  Republican  Ship  of 
State  which  the  wisdom  of  antiquity  or  the 
patriotism  of  the  middle  ages  ever  launched 
on  the  ocean  of  popular  will,  has  sunk  under 
the  waves  of  party  passion. 

Instructed  by  the  experience  of  ag  es,  Wash 
ington,  Franklin,  Madison,  and  their  compeers 
in  the  Federal  Convention  of  1787,  coristruct- 
j  ed  a  national  government  on  the  true  and  only 
available  plan  :  and  their  mighty  work  is  just 
ly  considered  the  model  Constitution  of  every 
free,  virtuous,  and  enlightened  people.  Ken 
tucky — the  first  born  of  the  "old  13,"  fashion 
ed  her  Constitution  by  that  finished  model. 
And  hence  our  Constitution,  under  which  we 
hare  lived  and  prospered  for  more  than  half  a 
century,  may  be  justly  said  to  be  the  offspring 
of  the  matured  and  rectified  wisdom  of  the 


dispensable  to  the  practical  freedom  and  se-  |  Father  of  his  Country,  and  his  enlightened 
curity  of  the  citizens  of  every  Democracy,  of  co-laborers  in  the  cause  of  American  liberty, 
whatever  form.  Liberty  without  security  is  a  j  It  is  a  shoot  from  the  stock  planted  by  their 
delusive  mockery — it  is  anarchy,  which  is  the  j  hands — the  anatomy  is  the  same — every  thing 
worst  form  of  despotism.  To  secure  to  eveiy  j  organic,  every  thing  vital,  is  essentially  the 
citizen  as  much  of  natural  liberty  as  may  be  j  same.  And  therefore,  if  one  be  radically  defec- 
compatible  with  the  stability  of  public  an-  |  tive,  the  other  must  be  equally  so — and,  if  the 


thonty  and  the  security  of  the  fundamental 
rights  of  all,  is  the  great  problem  of  Republi 
can  Government,  whieh,  if  evertobe  effectually 
solved  on  earth,  has  been  already  exemplified 
only  by  the  Anglo-Saxon  race  in  the  present 
age,  and  in  our  blessed  America.  The  Amer 
ican  mode  of  effecting  this  great  end — the  de 
sire  of  all  just  men — is  by  the  adoption  of 
written  Constitutions,  recognizing  the  civil 
equality  of  every  citizen,  imposing  limitations 
on  the  power  of  numbers,  and  distributing  all 


frame-work  of  the  one  be  right,  that  of  the 
other  cannot  be  wrong.  We  are  satisfied  that 
in  the  stamina  of  a  Republican  Constitution 
each  of  them  is  as  perfect  as  human  wisdom 
But,  like  all  tho 
of  them  are,  in 
some  portions  of  their  superstructure,  imper 
fect,  and  might,  in  that  respect,  be  improved. 
None  of  these,  however,  are  esential  to  vitality 
or  stability.  No  prefect  Constitution  will  ever 
be  made  bvthe  hands  of  man;  nor,  if  such  an 


will  ever  be  able  to  make, 
works  of  fallible    man,   both 


popular  sovereignty  among  three  co-ordinate  j  one  should  be  given  to  us  by  Omniscience, 
bodies  of  magistracy,  each  the  organ  of  the  '  would  we  all  be  satisfied  with  it.  Human 
people  within  its  separate  sphere,  and  so  con-  wisdom  will  never  make  a  Constitution  which 


340 


TO  THE  CITIZENS  OF  FAYETTE  COUNTY. 


will  be,  in  all  respects, precisely  what  any  one 
of  even  those  who  made  it  would  prefer:  all  will 
have  some  objection  to  it.  And,  consequently, 
every  citizen  of  Kentucky,  who  thinks  for 
himself,  has  felt  some  objections  to  our  Consti 
tution,  comparatively  excellent  as  enlightened 
candor  must  admit  it  to  be.  Each  of  us  would 
be  pleased  to  see  it  amended  if  such  partial 
amendments  as,  in  our  judgments,  would  irn 


prove  it;  could  be  adopted. — But  none  of  us   as  proposed,  it  makes  all  Judges,  as  well 


would  touch  a  fibre  of  its  roots  :  none  of  us 
•would  essentially  change  one  of  the  three 
great  organs  of  its  being.  Nor  have  we  any 
hope  that  a  Convention,  constituted  as  the 
late  one  was,  and  determined  to  tear  up  the 
Constitution  and  plant  a  new  one  in  its  place, 
will  ever  establish  one  as  good,  or  which  will 
live  as  long,  or  bear  as  good  or  as  much  fruit. 
Under  that  old  Constitution  every  citizen, 
however  humble,  has  enjoyed  all  the  guaran 
tied  rights,  and  the  Commonwealth  has  been 
distinguished  by  a  prosperity  and  a  name 
which  should  satisfy  the  reasonable  ambition 
of  any  republic  on  earth. 

Although  every  citizen  of  Kentucky  has 
looked  on  its  Constitution  as  imperfect,  and 
would  therefore  have  desired  to  alter  it  in  such 
a  manner  as  would,  in  his  opinion,  improve  it, 
yet,  apprehending  that  it  might  bo  made  worse 


and  the  Constitutions  of  a  large  majority  of 
the  States,  and  of  all  the  slave  States  in  the 
Union  except  Kentucky,  may  be  amended — 
but  withholds  the  right  to  make  any  change 
whatever,  however  much  or  unanimously  it 
may  be  desired,  in  any  other  mode  than  by  & 
Convention,  and  after  a  persevering  and  agi 
tating  struggle  for  at  least  seven  years.  And 
instead  of  changing  merely  the  tenure  of  office 


almost  all  other  officers,  high  and  low,  elec 
tive,  reduces  judicial  tenure  to  unreasonably 
short  periods,  and  allows  the  Judges  to  be  re- 
eligible.  These  changes  are  not  only  radical 
but  essentially  irreconcilable  with  those  pro 
posed  by  the  platform.  Moreover,  instead  of 
such  a  re-organization  of  the  County  Courts 
as  was  contemplated,  the  Convention  provides 
for  more  than  300  new  Judges,  who,  if  they 
should  be  abler  lawyers  than  the  ordinary 
Justices,  must  cost  the  state  at  least  $150,000 
annually — or,  if  they  should  not  be  jurists, 
will  probably  increase  the  drafts  on  the  trea 
sury  as  much  as  $50,000  a  year — all  for  noth 
ing1';  the  present  County  Courts  costing  noth 
ing  and  doing  their  business  as  well. 

In  chaining  down  the  Constitution  to  pre 
vent  alteration,  the  Convention,  instead  of 
progressing  with  the  spirit  of  the  age,  has,  by 


instead  of  better  under  the  radical  process  of  jone~gigantic  leap,  gone  backward  to  th'e 
a  total  renovation  by  a  Convention  armed  gloomy  days  of  feudal  lords  and  vassals — has 
with  power  over  the  whole  of  it,  an  over-  turned  its  back  on  modern  light  and  on  every 
whelming  majority  persisted  in  overruling  a  American  precedent — has  tied  a  Gordian  knot 
call  for  such  a  Convention  until  the  eventful  [which  can  scarcely  ever  be  unloosed  unless  it 
year  of  1847  when,  as  a  consequence  more  of  I  be  cut — and  would  thus  fasten  on  this  gener- 
the  timidity  of  rival  parties  struggling  for  ation  and  its  posterity  a  Government  which, 


the  predominance  than  of  the  deliberate 
choice  of  the  people,  an  act  was  passed  for 
taking  their  vote  ;  and,  chiefly  as  the  effect  of 
the  same  paralysing  circumstance,  the  call 
was  made  rather  by  default.  To  enable 
the  people  to  vote  with  their  eyes  open 
to  the  consequences,  the  advocates  of  the  call 
published  a  "platform"  of  the  reforms,  for 
effecting  which  they  desired  a  Convention.  On 
that  platform,  believing  it  to  be  made  in  good 


however  oppressive  or  odious  it  may  become, 
but  few  men  will  ever  hope  to  change  other 
wise  than  by  revolution.  This  surely  is  not 
"progressive  Democracy."  We  should  sus 
pect  rather  it  was  a  device  of  Whig  lawyers 
in  the  Convention,  to  damn  the  whole  scheme 
of  the  little  Democratic  majority  in  that 
body. 

Had  the  "platform"  proposed  such  a  Con 
stitution  we-  are  satisfied   that  the  call  of  a 


faith,   the  people  concurred  in  the  solicited  |  Convention  would  have  been  overruled  by  a 
call.    None  of  the  proposed  reforms  would  j  majority  as  large  as  that  which,  relying  on 
have  made  any  radical  change  in  the  organic  the  published  basis,  voted  for  it. 
structure  of  the   Government.     The  most  es-  |     And  can  it  be  beleived  that  the  Judiciary, 

•  •  j      j        1     •  j_1_  __  1  -lit  i 


sential  and  conspicuous  of  them  were,  1st.  A 
change  in  the  mode  of  altering  the  Constitu 
tion,  so  as  to  allow  partial  amendments  by 
votes  at  the  polls  without  the  expense,  agita 
tions  and  hazards  of  Conventions  with  full 
power  to  change  the  whole — and  2d.  A  change 


as  constituted  in  the  new  plan,  will  be  such 
as  all  experience  demands  and  the  theory  of 
every  American  or  modern  Constitution  (even 
this  new  one)  requires  for  maintaining  in 
violate  the  guaranties  of  the  fundamental  law, 
and  securing  impartial  justice  between  man 
and  man  ?  In  the  whole  annals  of  jurispru 


dence  no  such  judiciary  ever  proved  adequate 
to  either  of  these  indispensable  enT 


in  the  tenure  of  judicial  office  from  life  to  a 
prescribed  number  of  years — but  disclaiming 

any  purpose  otherwise  to  impair  the  necessary  •  to  either  of  these  indispensable  ends  of  every 
independence  of  the  Judiciary.  !  good  Government.     To  declare  that  certain  in- 

But,  notwithstanding  that  implied  pledge,  '  dividual  rights  shall  be  sacred,  or  to  declare 
the  Convention  has  offered  for  adoption  a  new  j  that  the  Legislature  shall  not  invade  any  one 
scheme  radically  different  from  that  proposed  !  of  them,  is  a  humbug,  unless  the  Constitu- 


to  the  people  for  their  consideration,  when 
they  voted  to  try  the  experiment  of  reform. 
The  new  form  not  only  does  not  permit  the 
people  to  improve  their  Constitution  by  par 
tial  amendments*  in  modes  similar  to  those  by 
wbJQh  the  Constitution  of  these  United  States, 


tion  containing  the  declaration  shall  also  pro 
vide  proper  and  effectual  means  of  maintain 
ing  its  supremacy  over  the  repugnant  will  of 
a  dominant  party,  however  strong.  Whew 
this  is  not  done,  the  practical  power  is  not 
where  it  ought  to  be,  in  the  Constitution,,  but, 


TO  THE  CITIZENS  OF  FAYETTE  COUNTY. 


341 


where  it  ought  not  to  be,  in  a  Legislative  ma 
jority,  which  it  is  the  chief  object  of  every 
constitutional  limitation  to  control,  in  the  only 
effectual  mode,  by  a  firm,  honest,  and  enlight 
ened  Judiciary. 

With  a  pliant  Judiciary,  subservient  to  the 
will  of  a  ruling-  party,  the  Constitution  will 
fail  to  protect  whenever  its  protection  shall  be 
most  needed — to  save  the  poor,  the  weak,  and 
the  unpopular  from  unconstitutional  oppres 
sion.  Should  a  triumphant  party  pass  an  act 


the  minority  and  the  majority,  would  have  an 
equal  chance  of  stern  and  impartial  justice? 
And  for  what,  but  to  protect  those  who  have 
not  the  power  to  protect  themselves,  is  a  Re 
publican  Constitution 
tells  a  warnin  g  tale  01 
ject,  and  yet  tells  not — because  the  historian 
cannot  know— the  one  hundreth  part  of  the 
corruptions,  the  prostitutions,  and  the  oppres 
sions  springing  from  the  organization  of  such 
a  Judiciary  as  that  proposed  by  the  late  Con- 


ever  made  ?    History 
this  momentous  sub- 


impairing  the  obligation  of  contracts,  or  an  ex  j  vention.     But  it  does  record,  in  burning  char- 
post  facto  act,   or  an  act  punishing  a  freeman  j  acters,  the   humiliating  fact  that,  even  in  our 


gallant  sister  State,  Mississippi,  Judges  have 
closed  their  courts  to  avoid  giving  judgments 
— Sheriffs  have  resigned  to  prevent  execution 
, — and  that,  more  than  once,  "  Lynch"  law  has 

iously  hoping  for  re-election  *  .Had  such  been' I  reigned  supreme  and  unrebuked. 

our  Judges  during  the  memorable  "old   and'      vVith  a  prophetic  forecast,  as  well  as  historii 

—        °      --  .___•».  ,          mi* T-n1 _        •         !.:.-,     .  TT'_ 


for  his  conscience,  or  robbing  him  of  his  pro 
perty,  the  doomed  citizen  could,  with  but  little 
hope  of  rescue,  appeal  to  a  Judge  elected  by 
the  same  party,  tor  a  short  period,  and  anx- 


new  Court"  controversy  which  agitated  Ken 
tucky  for  many  years,  they  would  sooner  or 
later,  have  bowed  to  the  persevering  and  tre 
mendous  majority  interested  in  unconstitu 
tional  "relief  acts,"  and  the  Constitution,  in 
stead  of  triumphing,  as  it  did  most  gloriously 
through  a  firm  Judiciary,  would  finally  have 


gone  down  and  become  the  play  thing  of  fac 
tion.  Popular  election  may  not  be  the  best\ 
mode  of  selecting  good  Judges.  Admitting 
the  competency  of  the  people  to  appoint 
Judges,  as  well  as  the  incumbents  of  the  other 
departments,  when  they  have  proper  opportu 
nities  of  doing  so,  yet  the  great  reason  why 
they  should  elect  the  latter  does  not  apply  to 
the  former.  In  legislation  the  constitutional 
will  of  the  people  ought  to  prevail — and, 
therefore  they  should  elect  their  legislative  re 
presentatives.  The  same  principle  applies 
also  to  most  of  the  duties  of  the  Executive  : 
but  a  very  different  one  applies  to  the  Judi 
ciary,  whose  province  is,  not  to  echo  the  public 
sentiment,  but  to  decide  the  law  and  uphold 
justice  and  the  Constitution  against  an  oppos 
ing  torrent  of  popular  feelinar.  To  ruake 


truth,  Thomas  Jefferson,  in  his  notes  on  Vir 
ginia,  denounced  such  a  servile  Judiciary  a.s 
the  supple  instrument  of  faction  and  of  anar 
chy,  and  said,  in  reference  to  it — •"  An  elective 
Despotism  is  not  the  Government  we  fought  for." 
And  echo  should  reverberate  through  the  whole- 
valley  of  the  Mississippi,  "  Such  an  elective 


Judges  of  the  law  representatives  of  public 
opinion,  like  the  makers  of  the  law,  is  incon 
sistent  and  suicidal.  And  consequently, 
whatever  will  tend  to  subject  the  Judiciary  to 
the  fluctuating  tide  of  passion  or  of  party  is, 
so  far,  subversive  of  the  American  theory  of 
Constitutional  liberty  and  security.  Had  the 
Convention  only  provided  for  the  election  of 


Despotism  is  not  the  Government  ice  fought  for," 
On  this  subject  James  Madison  and  his  col 
leagues  in  the  work  of  consolidating  our  na 
tional  liberties,  have  recorded,  for  our  safety, 
the  following  instructions: 

"  In  a  Monarchy  it  (an  independent  Judi 
ciary)  is  an  excellent  barrier  to  the  despotism 
of  the  prince  ;  in  a  Republic  it  is  a  no  less  ex 
cellent  barrier  to  the  encroachments  and  op 
pressions  of  the  Representative  body  ;  and  it 
is  the  best  expedient  that  can  be  devised,  in 
any  Government,  to  secure  a  steady,  upright 
and  impartial  administration  of  the  laws." 
"  The  complete  independence  of  the  Courts 
of  Justice  is  peculiarly  essential  in  a  limited 
Constitution.  By  a  limited  Constitution,  wo 
mean  one  which  contains  specified  exceptions 
to  the  Legislative  authority.  Such,  for  in 
stance,  as  that  it  shall  pass  no  bill  of  attainder 
or  ex  post  facto  laws,  or  the  like  ;  limitations 
can  be  preserved  in  practice  in  no  other  wav 
than  through  the  medium  of  Courts  of  Jus 
tice,  whose  duty  it  must  be  to  declare  all  acts, 
contrary  to  the  manifest  tenor  of  the  Consti 
tution,  void.  Without  this  all  the  reservations 
of  particular  rights  or  privileges  would  amount 

frf-k    n^lli  T  11  r*  }*         **rPT»ii   !  nrlrtTkOiirl  nnnr*    /-\-f    +1-**^      Tn 


Judges  for  a  period  of  ten  or  twelve  years,  and  j  to  nothing."  "  The  independence  of  the  Ju- 
declared  against  a  re-election,  we  would  not '  diciary  is  equally  requisite  to  guard  the  Con- 
have  opposed  the  adoption  of  the  new  Consti- 1  stitution  and  the  rights  of  individuals  from 
tution  on  that  ground  alone.  But,  by  reducing  the  effects  of  those  ill  humors  which  the  arts 
the  term  ef  office  to  so  short  a  period  as  six  |  of  designing  men,  or  the  influence  of  particu- 
years,  and  allowing  re-eligibility,  that  new  |  lar  conjunctures  sometimes  disseminate  among 

the  people  themselves."  "  The  benefits  of  the 
oderation  of  integrity  of  the  Judiciary  have 


scheme  of  Government  holds  out  a  bait  which 
must  subject  the  Judiciary    to   a  capricious 


power,  whose  will  the  objects  of  its  creation   already  been  felt  in  more  States  than  one." 
and  of  the  Constitution  itself  require  it  often  i  "  Considerate  men,  of  every  description,  ought 

'  to  prize  whatever  will  beget  this  temper  in 


to  resist  and  control. 

Who  could  expect  such  a  Judiciary,  by  a 
self-sacrifice,  to  maintain  the  integrity  of  the 
Constitution  against  an  exceedingly  popular 
act  of  Assembly?  Who  would  hope,  that  before 
such  Judges  the  poor  and  rich,  the  weak  and 
the  powerful,  the  popular  and  the  friendless, 


the  Courts;  as  no  man  can  be  sure  that  he 
may  not  be  to-morrow  the  victim  of  a  spirit  of 
injustice  by  which  he  may  be  a  gainer  to-day 
— and  every  man  must  now  feel  that  the  in 
evitable  tendency  of  such  a  spirit  is  to  sap  the 
foundations  of  public  and  privet*  confidence 


342 


TO  THE  CITIZENS  OP  FAYETTE  COUNTY. 


and  to  introduce,  in  its  stead,  universal  dis 
trust." 

These  are  the  wise  lessons  of  our  fathers, 
and  their  truth  is  stamped  by  the  experience 
of  all  ages. 

And,  is  it  not  as  important  to  confidence, 
security,  and  justice,  in  a  Republic,  that 
Judges  should  not  be  subservient  to  a  domi 
nant  party,  as  it  can  ever  be  that,  in  a  mon 
archy,  they  should  not  be  the  tools  of  an  ar» 
bitrary  king?  Is  it  not  even  more  important  ? 
Are  not  the  influence  and  power  of  an  over 
whelming  majority  of  the  people  in  a  democ 
racy  more  difficult  to  withstand  than  those  of 
one  man  under  any  form  of  Government  ? 
The  one,  if  a  monster,  is  one-armed — the 
other  might  be  a  Briaerian  giant  with  a  hun 
dred  strong  arms. 

The  absolute  supremacy  of  an  unchecked 
majority  of  the  people  of  any  State  is  the 
most  insecure  and  intolerable  of  all  Govern 
ments.  The  grand  object,  therefore,  of  every 
American  Constitution  has  been  to  secure  the 
weak  against  the  strong,  the  poor  against  the 
rich,  minorities  against  unjust  majorities,  each 
citizen  against  oppression  by  all,  and  the 
State  itself  against  factious  combinations  to 
undermine  its  foundations,  A  Government 
of  reason,  and  not  of  passion— of  truth  and 
not  of  error — of  virtue  and  not  of  vice — of 
just  laws  and  not  of  unjust  men — is  the  first 
hope  of  every  Republican,  and  the  ultimate 
aim  of  every  well  organized  Republic.  And 
all  history,  as  well  as  right  reason,  proves  that 
there  can  be  no  security  to  any  individual 
right  without  forganic  limitations  on  the  will 
of  an  ephemeral  majority.  Hence  an  unlim 
ited  Democracy  is  an  obsolete  form  of  Govern- 


provide  effectual  means  for  maintaining  invio 
late  its  theoretic  limitations  on  the  will  of  the 
majority,  is  not,  in  any  true  or  available  sense, 
a  fundamental  and  supreme  law.  It  is  not, 
therefore,  in  the  American  sense,  a  Constitu 
tion.  This  our  Fathers  have  told  us,  and,  as 
their  best  legacy,  Washington,  Madison,  Jef 
ferson,  and  the  most  enlightened  of  their  pat 
riotic  contemporaries  have  warned  us  never  to 
forget  that  great  political  truth  established  by 
universal  history  and  consecrated  by  the  im 
mortal  work  of  their  illustrious  and  eventful 
day. 

The  new  scheme  proposed  by  the  Conven 
tion,  in  contempt  of  all  the  lessons  of  expe 
rience  and  of  the  solemn  warning  of  our  Patri 
archs  of  the  purest  and  brightest  age  of 
Liberty,  would  organize  a  Judiciary  in  such  a 
manner  as  to  make  it  subservient  to  the  very 
power  which  the  security  of  all  our  guarantied 
rights  requires  that  it  should  often  resist  and 
control.  Instead  of  making  the  Constitution 
supreme  over  all  parties,  as  every  organic  sys 
tem,  to  be  a  good  one,  must  do,  it  instals  the 
transient  majority  as  practically  the  supreme 
power  over  all  that  concerns  the  Common 
wealth  and  every  citizen  of  it.  In  the  act  of 
its  creation  therefore,  it  commits  suicide  by 
the  infusion,  into  its  viens,  of  an  insidious 
and  slow,  but  sure  poison. 

Wherever  a  similar  system  has  been  tried, 
the  laws  have  been  unstable,  justice  capri 
cious,  judicial  decisions  but  little  respectcu, 
the  weak  oppressed,  and  the  Constitution 
paralyzed.  Even  in  Ohio,  where  the  State 
Judges  are  dependent,  as  they  would  be  here 
under  the  new  form,  on  the  breath  of  u  ruling 
majority,  no  Kentuckian  can  feel  any  assur- 


ment;  and  hence  also  etery  American  Consti-  j  ance  of  justice  in  regard  to  his  fugitive  slaves 
tution  professes,  as  its  leading  object,  to  guard  unless  he  appeals  to  a  judge  of  the  general  gov- 
Liberty,  Property  and  Equality,  against  the  |  eminent  Avho  may  have  a  judgment  of  his  own 
arbitrary  power  of  shifting  majorities,  or  ra- 

*!,„,.  ~e  <-!,  „  T .•    i_i i  •    -i     •     ji 


ther  of  the  Legislature,  which  is  the  creature 
of  the  ruling  popular  majority.  And  this 
they  all  propose  to  effect,  in  the  only  efficient 
modes,  by  imposing  fundamental  limitations 
on  Legislative  power,  and  by  providing  a  dis- 

iTvlt nl i\  in  or  tit ,'i^:r*  flfl'lnt.flfV 


tinct  department  for 


salutary 


and  firmness  enough  to  utter  and  maintain  it 
in  defiance  of  the  clamor  of  the  multitude. 
And  though  many  there  may  say  that  the  elec 
tive,  periodical,  re-eligible  judiciary  works 
well,  you  may  find  that  they  are  holders  or  ex 
pectants  of  office  er  belong  to  the  majority  and 
therefore,  good  or  bad,  praise  the  rna- 


would 


chine  that  works  to  their  own  hands.     .But  in- 


upholding  those 

restrictions.     Without  such  a  body  of  Magis   ( 
tracy  all  constitutional  limitations  on  the  in-  |  quire  of  a  disinterested,  quiet  citizen,  and  he 
herent  power  of  majorities  would  be  but  cob- !  will  tell   you  it  is  a  curse — that  it  often  doe 


webs,  and  the  Constitution  itself,  which 
should  be  above  all,  would  not,  when  its  pro 
tection  would  be  most  needed,  operate  at  all, 
as  "  the  supreme  law."  Without  such  a  tri- 


crying  injustice  to  obnoxious  or  uninfluential 
persons  which  the  world  knows  not  of — and 
that  it  uevei  stays  the  popular  arm  of  power, 
when  uplifted  to  strike  down  the  Constitution. 
If  such  a  Judiciary  be,  on  principle,  right 
iu  Kentucky,  it  would  be  equally  right  in 
every  other  State  ;  and  if  right  in  all  the 


bunal  a  dominant  majority  might  enforce  every 
unconstitutional  act  which  ignorance  or  pas 
sion  might  induce  the  Legislature  to  pass;  and  ^.v.v  ^^v..t  ^L^UV,  ,  cvn^.  11.  H&"«J  AH  ..AJ.  U..^ 

then,  for  all  the  great  ends  of  its  creation,  the  I  States  oi'  the  Union,  it  must  be  right  also  in 
Constitution  would  be  powerless — dead.  It  [  the  United  States.  Then  let  Kentucky  once 
would  be  a  useless  body  without  a  soul — a  j  adopt  the  new  Constitution,  and,  by  her  ex- 
inere  mechanism  without  inherent  motive  !  ample,  invite  her  sister  States  and  the  General 
power,  or  capacity  of  self-preservation.  It  |  Government  to  adopt  a  similar  judicial  system, 


would  be  all  theory,  and  no  practice.  It  would 
still  speak  ;  but  its  speech  would  be  mechan 
ical — the  cuckoo  note  of  the  dominant  party 
— and  when  its  protection  should  be  invoked, 
it  would  be  as  dumb  and  as  nerveless  ns  a 
statue.  That  Constitution  which  does  not 


:y  being  opposed 
free-soilers  may 


may 


and  soon,  the  national  major  it 

to  slavery,  abolitionists  and  f 

reign  supreme  through  the  instrumentality  of 

a  dependent  servile  judiciary — the  last  const! 

tutional   arbiter   of  the   supreme   law   of  the 

Union.     And  then  there  will  be  neither  union 


TO  THE  CITIZENS  CF  FAYETTE  COUNTY.  ' 


343 


nor  peace,  nor  security  to  slave  property. 
Against  such  a  judiciary  the  minority  of  slave 
States  -would  protest.  For  the  like  reason  the 
wise  and  the  just  ought  to  protest  against  such 
a  judiciary  in  any  State,  and,  above  all,  in 
Kentucky.  A  late  number  of  the  National 
Intelligencer  solemnly  warns  the  people  of 
Maryland  (who  are  about  to  amend  their  Con- 
>titution)  against  the  curse  of  an  elective,  pe 
riodical,  re-eligible  judiciary. 

This  is  but  an  illustration  of  a  fundamental 
principle  of  the  American  Whig  party.  And 
it  is  equally  a  principle  of  all  organized,  lim 
ited,  conservative  Democracy.  Let  either  a 
Whig  or  a  Democrat,  honest  and  enlightened, 
deny  it,  if,  in  his  conscience,  he  can. 

In  the  proposed  re-organization  of  the  Ex 
ecutive  too,  the  Convention  disrobes  the  Gov 
ernor  of  almost  all  authority,  except  that  of 
drawing  a  sinecure  salary,  and  issuing  par 
dons  and  remissions  of  fines.  And,  as  this 
will  be  his  chief  patronage,  he  may  find  it  his 
interest  to  make  a  freer  use  than  ever  hereto 
fore  of  the  pestilent  prerogative  of  remission. 
He  will  still  beheld  responsible  for  the  exe 
cution  of  the  law,  and  yet  his  subalterns  are 
not,  in  any  way,  responsible  to  him.  The 
keeper  of  the  public  money,  tho  Attorney 
(reneral,  the  subordinate  Attorneys  for  the 
Commonwealth,  the  Sheriffs  and  the  Consta 
bles,  are  all  to  be  elected; — and  Sheriffs,  though 
agents  of  the  Treasury,  are  to  be  elected,  not 
by  any  organ  of  the  State  ,but  by  small  fractions 
of  it.  This  mode  of  appointing  Sheriffs  was 
fully  tried  in  Kentucky  from  1792  to  1799;  and 
tradition  testifies  that  it  proved  an  intolerable 
nuisance  to  the  treasury,  as  well  as  to  private 
justice;  and  the  first  Constitution  was,  in  that 
respect,  therefore,  amended  by  that  which 
many  desire  now  to  change  back  to  it.  Hut 
ihis  is  comparatively  a  matter  of  slight  con 
cern,  and  is  certainly  not  "  progressive." 

The  advocates  of  the  Convention  claimed 
for  the  people  some  enlargement  of  their  priv 
ileges,  and  the  Convention,  in  its  published 
address,  professes  to  have  made  a  great  exten 
sion  of  them.  But  this  is  not  so.  The  new 
Constitution  gives  the  people  only  one  new 
privilege — that  of  universal  election — which 
will  be  of  no  practical  utility;  and  it  takes 
from  them  many  valuable  rights  and  privi 
leges  they  now  enjoy.  Whilst  it  amuses  the 
unreflecting  with  the  semblance  of  a  greatly 
augmented  electoral  power,  it  provides  for  so 
many  and  such  frequent  elections,  and  of  so 
many  officers,  high  and  low,  at  the  same  time, 
as  to  prevent  the  pure,  careful,  and  prudent 
exercise  of  the  franchise,  throw  all  nomina 
tions  and  elections  virtually  into  the  hands  of 
a.  few  busy  and  selfish  managers — degrade  the 
practical  government  into  a  trafficking  and 
corrupting  oligarchy — and,  finally,  produce 
among  the  industrious  and  working  classes,  a 
paralyzing  indifference  about  voting,  and  thus 
operate  so  as  to  concentrate  the  elective  pow- 
or  on  a  class  that  will  make  a  trade  of  elec 


tions.  Is  this  privilege  a  boon  to  be  struggled 
for  by  wise  men?  But,  as  a  compensation  for 
this  bubble,  the  Convention  would  deprive  the 


people  of  valuable  rights  they  have  hitherto 
enjoyed.  Although  it  is  a  cherished  and  time 
honored  maxim  of  republicanism,  that  fre 
quent  elections  of  legislaiive  agents  is  essen 
tial  to  liberty,  by  securing  proper  responsibil 
ity,  and  a  faithful  representation  of  the  con 
stituent  will;  yet  the  new  Constitution  with 
holds  from  the  electors  the  right  to  vote  for 
members  of  the  House  of  Representatives  of 
the  State  oftener  than  once  in  two  years;  and 
thus,  instead  of  repressing  excessive  legisla 
tion  by  circumscribing'  the  legislative  sphere, 
and  limiting  the  duration  of  the  Legisla 
ture,  it  takes  from  the  people  the  privilege 
of  making  laws  every  year,  and  leaves  the 
officers  of  government  themselves  unguarded 
by  the  Grand  Inquest  of  the  State  for  a  period 
of  two  years.  It  also  requires  tho  counties, 
and  such  a  city  as  Louisville,  to  be  subdivided 
into  several  election  precincts,  which  will 
greatly  increase  the  public  burthen;  and  it  ar 
bitrarily  denies  to  every  citizen  the  right  to 
vote  out  of  his  own  precinct,  or  even  in  it,  un 
less  he  shall  have  resided  there  60  days  imme 
diately  preceding  the  day  when  he  offers  to 
vote.  This  restriction  will  frequently  dis 
franchise  some  of  our  best  citizens,  and  al 
ways  a  portion  of  the  poor  and  laboring  class, 
who  have  not  the  means  of  providing  abiding 
homes,  or  do  not  feel  it,  their  interest,  to  do  so. 
Will  any  such  free  white  men  vote  thus  to  tie 
their  own  hands  and  lock  their  own  mouths? 

The  new  Constitution  also  apportions  re 
presentation  in  such  a  manner  as  to  deprive 
many  counties  of  their  equal  share  of  represen 
tative  power,  and  1.0  ^ive  to  other  portions, 
and  especially  Ihe  commercial  and  rapidly 
growing  cities,  an  unjust  preponderance 
over  the  populous  agricultural  districts  of 
the  country.  ThU  fact  is  indisputable.  It 
also  perpetuates  the  existing;  high  taxation, 
and  even  requires  ah  increase;  and  vet  it  locks 
the  door  of  the  treasury  against  the  people 
t.hem selves,  and  forbids"the  extension  or  com 
pletion  of  wor!;:-,  of  internal  improvement, 
however  necessary  to  the  public  welfare  any 
such  improvements  may  become.  Can  not  the 
people  be  trusted  with  their  own  money? 
Shall  they  have  no  power  to  regulate  their 
own  taxes,  or  to  direct  any  appropriation  of 
the  proceeds?  The  new  Constitution  says 
not.  Such  fetters  on  the  popular  right  of  tax 
ation  and  disbursement,  led  to  the  American 
Revolution;  and  they  will  never  be  long1  en 
dured  by  any  people  who  know  how  to  be  free. 

In  providing  for  electing  four  Appellate 
Judges  by  districts,  the  Convention  curtails 
and  perverts  the  elective  privilege;  for,  ac 
cording  to  this  mode  of  election,  no  citizen 
will  have  a  right  to  vote  for  or  against  more 
than  one  of  the  four  judges,  who  are  to  decide 
finally  on  his  constitution  and  his  dearest 
rights.  And  the  most  important  office  under 
the  Constitution- -that  of  "Chief  Justice  of 
Kentucky"— which  should  be  conferred  on  the 
most  distinguished  jurist  as  the  prize  of  merit, 
is  to  be  gambled  for,  and  won  by  the  lucky  ad 
venturer  who  happens  to  draw  the  shortest 
strait:! 


344 


TO  THE  CITIZENS  OF  LAYETTE  COUNTY 


But,  to  cap  the  inverted  climax  of  popular 
privileges,  the  Convention,  as  already  suggest 
ed,  has  sealed  up  its  Constitution  and  marked 
it  "immutable,"  except  by  revolution  or  a  con 
vulsive  agitation  for  many  years.  This  re 
nounces  the  Declaration  of  Independence, 
which  proclaims  that  all  just  Government  be 
ing  made  by  and  for  the  people,  "they  have  at 
all  times  an  inalienable  and  indefeasible  right 
to  alter,  reform,  or  abolish  their  Government, 
in  such  manner  as  they  think  proper."  And, 
though  fundamental  stability  requires  some 
prudent  limitation  on  the  time  and  manner  of 
reform,  still  it  should  not  be  more  than  enough 
to  insure  calm,  rational  and  thorough  consid 
eration  by  the  constituent  body.  The  existing 
constitution  is  much  the  strongest  in  the  union 
against  the  power  of  change,  but  its  cords  are 
doubled  and  twisted  by  the  new.  Under  the 
new  Constitution,  but  few  would  have  the  pa 
tience  or  the  courage  to  attempt  reform  in  the 
mode  prescribed;  and,  if  it  should  ever  be  at 
tempted,  there  must  be  an  all-absorbing  agi 
tation  for  a  lonp  period,  beyond  which  many 
could  not  hope  to  live. 

Such  are  some  of  the -sample;;  of  the  enlarge 
ment  of  popular  privileges  by  the  Convention, 
and  also  of  its  professed  concessions,  to  the 
people  of  more  immediate  control  over  their 
Government  and  its  administration!  Do  any 
or  all  of  the  provisions,  which  have  been  thus 
noticed,  increase  the  rights  or  the  real  powers 
of  the  people?  Do  they  not ,  as  far  as  they  may 
operate,  put  handcuffs  on  the  people,  and  stifle 
their  free  and  independent  voice?  And,  with 
all  this  privation,  the  Convention  offers  a  Con 
stitution  which  must  fail  to  secure  the  ostensi 
ble  objects  of  it — stability — security — -justice — a 
Constitution  under  which,  except  as  to  amend 
ment,  the  ship  of  State  will  float,  rudderless 
and  anchorless,  on  the  tide  of  popular  senti 
ment,  te  the  imminent  hazard  of  all  the  pow 
erless  on  board.  It  contains  a  few  new  pro 
visions  which  we  approve.  But  they  are 
slight,  and  most  of  them  might  have  be*eu  ef- 
focled  by  legislation.  The  Countv  Courts 
might  have  been  sufficiently  re-organized  by 
net  of  assembly,  and  in  a  manner  much  better 
nud  cheaper  than  that  fixed  by  the  Conven- 
lion.  Legislative  Divorces  are  constructively 
prohibited  by  the  existing-  Constitution.;  and 
an  express  inhibition  is  not,  therefore,  of  any 
great  advantage.  The  tenure  of  office  by  the 
-)  udges  of  the  Circuit  Courts  might  be  reduced 
by  legislation,  because  these  are  legislative1 
courts,  and  therefore  may  bo  limited  period-  i 
ically  by  legislative  net.:?.  And  the  provisions 
as  to  duelling^are'jinconsistent/and  some  of 
them  impracticable;  for,  while  one  provision 
authorizes  the  Governor  to  remit  the  penalty, 
another,  nevertheless,  requires  that  the  duel 
list,  when  he  takes  an  official  oath,  shall 
swear  that  he  had  been  guiltless  ever  since  the 
adoption  of  the  Constitution  1  And  this  is  on 
ly  one  of  the.; many  vexatious  incongruities 
which'  characterize  the  crude  heterogeneous 
form  proposed  for  our  adoption.  The  truth  is 
said  to  be  .that,  although  the  Convention  sat 


eighty-three  days,  it  signed  its  Constitution 
in  crude  scraps  withoxit  engrossment. 

"We  have  no  disposition  to  speak  disrespect 
fully  of  the  Convention.  We  regret  that  It 
chose  to  re-assemble  in  June,  for  a  nominal 
purpose — we  regret  that,  by  its  own  mandate, 
it  took  from  the  treasury  $2,300  for  its  pay 
beyond  that  fixed  by  the,  law  under  ichich  it  as 
sembled,  or  by  any  other  law — we  regret  that  it- 
did  not  allow  more  time  for  sober  revision  by 
the  people,  and  a  more  suitable  occasion  for  a 
full  and  satisfactory  decision  at  the  polls  by  a 
majority  of  the  freemen  of  Kentucky,  instead 
of  a  minority  that  may  now  happen  to  decide 
the  future  destiny  of  us  all.  And  we  regret, 
more  than  all,  that,  after  so  much  agitation, 
and  so  much  expenditure  of  public  money,  it 
did  not  offer  us  a  better  Constitution — one  that 
we  could  safely  and  conscientiously  adopt.  It 
might,  had  it  been  so  disposed,  have  amended 
the  old  Constitution  in  two  weeks,  in  such  a 
manner  as  to  have  given  satisfaction  to  nine- 
teen-twentieths  of  the  freemen  of  Kentucky. 
But  many  of  the  members  of  the  Convention 
were  elected  under  the  influence  of  passions 
unpropitious  to  the  formation  of  such  a  Con 
stitution  as  wisdom  would  approve  or  patriot 
ism  would  adopt.  By  their  works,  however, 
they  should  be  tried.  Let  the  tree  be  judged  by 
its  fruit. 

The  Constitution  proposed  is  in  many  of  its 
features,  essentially  undemocratic — more  so, 
altogether  than  any  yet  adopted  in  the  United 
States.  It  speaks  for  the  people,  but  will  act 
against  them;  and  ia,  in  many  important  re 
spects,  very  far  from  such  as  they  desired  and 
had  a  right  to  expect. — Then  it  may  be  hoped 
that  the"  Democratic  party  will  not*  vote  for  it 
on  any  such  paltry  ground  as  the  fact  that  a 
small  majority  of  the  Convention  claimed  to 
be  of  that  party.  Tbe  sacrifice  would  be  too 
great  for  the  empty  bubble  of  a  doubtful  party 
triumph.  Yv'e  hope  therefore  that  allegi 
ance  to  country  and  duly  to  posterity  will  pre 
vent  the  immolation.  And,  as  the  new  Con 
stitution  is  not  at  all  like  that  proposed  in  the 
call  of  a  Convention,  a  decent  icspect  for  com 
mon  sense  and  consistency  would  authorise 
the  expectation  that  most  of  those  even  who 
united  in  that  call,  will  vote  against  the  rati 
fication  of  that  which  may  be  felt  as  a  fraud 
on  them  as  well  as  on  others.  We  are  well 
satisfied  that  many  of  the  original  movers 
of  a  Convention  and  voters  for  it,  will  vote 
against  its  Constitution — and  among  these  is 
John  L.  Helm,  the  writer  of  the  platform  and 
the  prime  mover  and  leading  champion  of 
"  reform."  And  how  an  old-court  Whig  can 
vote  for  that  Constitution  is  a  vexatious  pro 
blem,  of  which  we  can  neither  anticipate  nor 
attempt,  a  satisfactory  solution.  We  believe 
that,  if  it  be  adopted,*  the  worst  constitution 
in  the  Union  will  be  planted  on  the  ruins  of 
one  of  the  best.  And  we  do  apprehend  also  that 
it  will  not  be  a  Constitution  for  the  unaspiring 
quiet  people,  but  a  machine  for  hungry  law 
yers,  office-seekers,  and  demagogues  to  play 
upon.  We  feel  sure  that  it  would  not  work  as 
its  disinterested  advocates  desire  and  expect. 


TO  THE  CITIZENS  OF  FAYETTE  CO0NTY. 


[345 


Nor  do  we  doubt,  if  adopted,  that  a  majority 
of  the  people  will  boon  become  tired  of  it  and 
desire  a  change  that  will  then  be  almost 
hopeless. 

Let  no  man  vote  for  it  under  the  delusion 
that  it  clones  the  door  on  emancipation.  The 
Convention,  not  only  left  that  door  as  open  as 
it  found  it,  but  has  pointed  out  a  way  to  enter 
it  if  there  should  ever  be  a  majority  anxious 
to  do  so.  Although  all  the  members  of  the 
Convention  seemed  to  concur  on  the  subject 
of  slavery,  still  they  discussed  that  topic 
nearly  every  clay  during  their  long  session. — 
They  elaborately  discussed  also  a  proposition, 
which  they  ought  to  have  adopted,  to  pro 
hibit  specific  taxation,  and  in  full  view  of  the 
consequences,  and  especially  as  to  slavery, 
they  rejected  it.  Now,  therefore,  under  their 
constitution  and  without  any  violation  of  it, 
a  bare  majority  of  the  voters  of  Kentucky,  de 
siring  emancipation,  may,  indirectly  and  fi 
nally  effect  it  by  accumulating  taxes  on  slave 
property — or  may  consummate  their  object  of 
gradually  emancipating  all  post  nati  on  the 
condition  of  paying  the  assessed  value  of  them; 
and  by  another  law  for  raising,  by  a  tax  on 
slaves,  the  amount  required  to  pay  that  value. 
All  this  would  be  authorized  by  the  proposed 
constitution. 

Nor  should  any  considerate  man  vote  for  the 
new  constitution  for  any  vain  purpose  of  re 
pose.  He  need  not  fear  that  a  worse  will  ever 
be  adopted;  and  he  ought  to  see  that  the  old 
one  may  be  improved  much  more  easily  than 
the  new — and  that  moreover,  as  there  will 
now  be  no  difficulty  in  understanding  what 
amendments  the  people  want,  there  can  be  no 
injurious  agitation  in  the  future  consideration 
and  adoption  of  them,  as  there  certainly  will 
be,  immediately  and  unceasingly,  as  to  the 
new  if  that  be  now,  adopted  as  it  is. 

For  the  foregoing  reasons,  and  many  others 
which  the  occasion  will  not  allow  us  even  to 
suggest,  Ave  are  decidedly  opposed  to  the 
adoption  of  the  new  constitution,  and  have  re 
solved  to  try  faithfully  to  defeat  it.  But, 
whatever  it  may  be,  we  feel  that  there  is  dan 
ger  of  its  adoption.  As  presented  by  the 
convention  for  trial,  it  may  be  adopted  by  a 
minority  vote.  And  thus  less  than  half  of  the 
voters  of  Kentucky  may  impose  on  all  of  them, 
against  the  will  of  most  of  them,  a  headlong, 
sweeping  experiment  of  Government,  which, 
all  of  them  united  could  not  change  in  rea 
sonable  time  without  revolution.  But  there  is 
danger  that  even  a  majority  may  vot«  for  it; 
because  at  least  30,000  cherish  hopes  of  get 
ting  some  office  under  it — because  many  may 
erroneously  feel  that,  as  they  voted  for  the 
convention,  a  vote  against  its  constitution, 
however  bad  or  unexpected,  would  be  incon- 
44 


sistent — because  a  large  number  of  those  op 
posed  to  it,  apprehending  that  it  will  prevail, 
may  fail  to  vote — and,  because,  a  still  larger 
number,  anxious  to  float  with  the  popular 
current,  and  thinking,  from  the  great  Tote 
given  for  a  convention,  that  its  work  will  be 
approved,  will,  therefore,  for  self-security  or 
aggrandizement,  enlist  under  its  banner  and 
shout  for  its  triumph, 

But  we  believe  that  a  decided  majority  of 
the  people  are,  in  heart  aad  in  head,  opposed 
to  it — and  that,  by  united,  firm,  and  faithful 
efforts,  it  may  be  rejected.  We  are  resolved, 
as  far  as  we  can,  to  make  those  efforts.  If  the 
new  constitution  be  imposed  on  our  country, 
the  reproaches  of  posterity  shall  not  burn  our 
skirts.  We  have  done  well  under  the  old 
constitution.  No  people  have  ever  done  bet 
ter.  No  constitution  ever  maintained  its  au 
thority  more  uniformly  or  supremely.  Yet  it 
might  be  improved,  and  we  would  be  pleased 
to  improve  it.  But  the  new  constitution  will  be 
no  improvement.  It  is  liable  to  objections  im 
measurably  greater  than  any  which  have  been 
or  can  be  made  to  the  old  one.  The  issue  is, 
not  whether  we  shall  take  the  old  or  the  new: 
The  question  is  whether  we  shall  now  exchange 
the  old  for  the  new — whether  we  will  adopt 
the  new  form  as  our  constitution  which  we 
may  never  be  able  to  alter  peacefully,  or,  by 
rejecting  it,  stand  by  the  old  constitution 
which,  so  far  as  experience  may  hare  proved 
it  defective,  may  be  much  more  easily  and 
satisfactorily  amended,  especially  after  its 
long  and  severe  trial  which  will  have  clearly 
developed  the  deliberate  public  judgment  as 
to  all  tke  reforms  desired.  Shall  we  now,  be 
cause  we  may  see  some  blemishes  in  it,  des 
pise  the  legacy  of  our  Fathers  ?  Shall  we, 
recklessly  and  ungratefully  throw  away  the 
old  constitution,  under  which  we  have  so  long 
been  happy,  prosperous,  and  secure,  and  em 
bark  our  property,  liberty  and  religion,  on  an 
"experiment"  which  has  failed  wherever  it 
lias  been  tried  ?  Shall  we  thus,  Esau-like,  sell 
our  birth-right  for  a  mess  of  potage  ?  Would 
this  be  wise  ?  Would  it  be  Kentucky-like  ? 
Wisdom  would  hold  fast  to  the  good  we  hare 
until  we  are  sure  of  something  better.  If  we 
take  the  n«w  constitution  we  may  go  so  far 
down  the  hill  as  never  to  be  able  to  remount 
the  eminence  we  now  stand  on.  But  if  we  stand 
still  until  the  cloud  now  hovering  over  us 
shall  have  passed  by,  we  shall,  at  least,  be  as 
free  and  safe  as  always  hitherto.  And  then 
we  can,  calmly  and  prudently,  reform  our 
constitution  whenever  we  desire  reform,  with 
out  destroying  (as  the  new  form  would,)  its 
power  to  afford  effectual  security  to  all,  with 
out  which  there  never  was,  nor  ever  can  be, 
such  a  blessing,  among  men,  as  "Constitu 
tional  Liberty." 


SKETCH  OF  THE  COURT  OF  APPEALS. 

From  Collins*  History  of  Kentucky,  to  which  it  was  contributed  by  Mr.  Robertson. 


THE  Constitution  of  Kentucky — like  that  of 
the  United  States,  and  those,  also  of  all  the 
States  of  the  Anglo-American  Union — dis 
tributes,  among  three  departments  of  organic 
sovereignty,  all  the  political  powers  which  it 
recognizes  and  establishes.  And  to  effectuate, 
in  practice,  the  theoretic  equilibrium  and  se 
curity  contemplated  by  this  fundamental  par 
tition  of  civil  authority,  it  not  only  declares 
that  the  legislature  shall  exercise  no  other  pow 
er  than  that  which  is  legislative — the  Judiciary 
no  other  than  that  which  is  judicial — nor  the 
Executive  any  other  than  such  as  shall  be  exec 
utive  in  its  nature;  but  it  also,  to  a  conservative 
extent,  secures  the  relative  independence  of 
each  of  these  depositories  of  power.  If  courts 
were  permitted  to  legislate,  or  the  legislature 
were  suffered  not  only  to  prescribe  the  rule  of 
right  but  to  decide  on  the  constitutional  validity 
of  its  own  acts,  or  adjudicate  on  private  rights, 
no  citizen  could  enjoy  political  security  against 
the  ignorance,  the  passions  or  the  tyranny  of 
a  dominant  party:  And  if  judges  were  depen 
dent  for  their  offices  on  the  Avill  of  a  mere 
legislative  majority,  their  timidity  and  subser 
vience  might  often  add  judicial  sanction  to 
unconstitutional  enactments,  and  thereby,  in 
stead  of  guarding  the  constitution  as  honest 
and  fearless  sentinels,  they  would  help  the 
popular  majority  to  become  supreme,  and  to 
rule  capriciously,  in  defiance  of  all  the  funda 
mental  prohibitions  and  guaranties  of  the 
people's  organic  law.  As  the  legislature  de 
rives  its  being  and  authority  from  the  consti 
tution,  which  is  necessarily  supreme  and  in 
violable,  no  legislative  act  prohibited  by  any 
of  its  provisions,  can  be  taw;  and,  consequent 
ly,  as  it  is  the  province  of  the  Judiciary  to  de 
clare  and  administer  the  law  in  every  case,  it 
must  be  the  duty,  as  well  as  privilege,  of  every 
court  to  disregard  every  legislative  violation  of 
the  constitution,  as  a  nullity,  and  thus  maintain 
the  practical  supremacy  and  inviolabiltyof  the 
fundamental  law.  But  the  will  to  do  so, 
whenever  proper,  is  as  necessary  as  the  power; 
and,  therefore,  the  constitution  of  Kentucky 
provides  that  the  judges  of  the  Court  of  Ap 
peals,  and  also  of  inferior  courts,  shall  be  en 
titled  to  hold  their  offices  during  good  be 
havior;  and,  moreover,  provides  that  no  judge 
shall  be  subject  to  removal  otherwise  than  by 
impeachment,  on  the  trial  of  which  there  can 
be  no  conviction  without  the  concurrence  of 
two-thirds  of  the  Senate — or  by  the  address 
of  both  branches  of  the  legislature,  two-thirds 
of  each  branch  concurring  therein. 


The  first  constitution  of  Kentucky,  which 
commenced  its  operation  on  the  1st  of  June, 
1792,  also  prohibited  the  legislature  from  re 
ducing  a  judge's  salary  during  his  continuance 
in  office.  But  the  present  constitution,  adopt 
ed  in  1799,  contains  no  such  prohibition.  It 
is  not  difficult  to  perceive  which  of  these 
constitutions  is  most  consistent  with  the  avowed 
theory  of  both  as  to  judicial  independence; 
for,  certainly,  there  can  be  no  sufficient  assu 
rance  of  judicial  independence,  when  the  sala 
ry  of  every  judge  depends  on  the  will  of  a 
legislative  majority  of  the  law-making  de 
partment. 

But  to  secure  a  permanent  tribunal  for  ad 
judication  on  the  constitutionality  of  legislative 
acts,  the  existing  constitution  of  Kentucky, 
like  its  predecessor  in  this  respect,  ordained 
and  established  "A  Supreme  Court,"  and 
vested  it  with  ultimate  jurisdiction.  Section 
one  and  two  of  the  4th  article  reads  as  fol 
lows: 

"SEC.  1.  The  judicial  power  of  this  com 
monwealth,  both  as  to  matters  of  law  and 
equity,  shall  be  vested  in  one  Supreme  Court, 
which  shall  be  styled  the  Court  of  Appeals, 
and  in  such  inferior  courts  as  the  General 
Assembly  may,  from  time  to  time,  erect  and 
establish. 

"SEC.  2.  The  Court  of  Appeals,  except  in 
cases  otherwise  provided  for  in  this  constitu- 
tution,  shall  have  appellate  jurisdiction  only, 
which  shall  be  co-extensive  with  the  state,  under 
such  restrictions  and  regulations,  not  repug 
nant  to  this  constitution,  as  may,  from  time  to 
time,  be  prescribed  by  law." 

As  long  as  these  fundamental  provisions 
shall  continue  to  be  authoritative,  there  must 
be  in  Kentucky  a  judicial  tribunal  with  appel 
late  jurisdiction  "co-extensive  with  the  State," 
and  co-ordinate  with  the  legislative  and  exec 
utive  departments.  And  this  tribunal  being 
established  by  the  constitution,  the  legislature 
can  neither  abolish  it  nor  divest  it  of  appellate 
urisdictiou.  The  theoretic  co-ordinacy  of 
the  organic  representatives  of  the  three  func 
tions  of  all  political  sovereignty,  requires  that 
the  judicial  organ,  of  the  last  resort,  shall  be 
as  permanent  and  inviolable  as  the  constitu 
tion  itself.  The  great  end  of  the  constitution 
of  Kentucky,  and  of  every  good  constitution, 
s  to  prescribe  salutary  limits  to  the  inherent 
power  of  numerical  majorities.  Were  the  po 
litical  omnipotence  of  every  such  majority 
either  reasonable  or  safe,  no  constitutional 


COURT  OF  APPELS. 


347 


limitations  on  legislative  will  would  be  neces 
sary  or  proper.  But  the  whole  tenor  of  the  Ken 
tucky  constitution  implies  that  liberty,  justice 
and  security,  (the  ends  of  all  just  government,) 
require  many  such  fundamental  restrictions: 


sent  to  take,  at  its  nominal  value,  local  bank 
paper  greatly  depreciated.  The  object  of  the 
legislature,  in  establishing  such  a  bank,  and 
in  enacting  such  co-operative  statutes  as  those 
just  alluded  to,  was  to  enable  debtors  to  pay 


And  not  only  to  prescribe  such  as  were  I  their  debts  in  much  less  than  their  value,  by 
deemed  proper,  but  more  especially  to  secure  I  virtually  compelling  creditors  to  accept  much 
their  efficacy,  was  the  ultimate  object  of  the  j  less,  or  incur  hazards  of  indefinite  and  vexa- 
people  in  adopting  a  constitution:  And,  to  as-  j  tious  delays. 

sure  the  integrity  and  practical  supremacy  of  The  constitutionality  of  the  Bank  of  the 
these  restrictions,  they  determined  that,  as  long  Commonwealth,  though  generally  doubted, 


as  their  constitution  should  last,  there  should 


was  sustained  by  many  judicial  recognitions  by 


be  a  tribunal,  the  judges  of  which  should  be  the  Court  of  Appeals  of  Kentucky,  and  finally 
entitled  to  hold  their  offices  as  long  as  the  tri-  f  by  an  express  decisiouin  which  the  then  judges 


bunal  itself  should  exist  and  they  should  be 
have  well  and  continue  competent,  in  the  judg 
ment  of  as  manv  as  one-third  of  each  branch  of 


(Robertson,  Chief-Justice,  and  Underwood 
and  Nicholas,  Judges)  without  expressing  their 
own  opinions,  deferred  to  those  incidental  re- 


the  legislature  on  an  address,  or  of  one-third  I  cognitions  by  their  predecessors,  and  also  to 


of  the   Senate   on  an  impeachment:  And,  to 
prevent    evasion,  they  have    provided    that, 


the  opinion  of  the  Supreme  Court  of  the  Uni 
ted  States,  in  the  case  of  Craig  vs.  Missouri, 


whilst  an  incumbent  judge  of  the  Appellate  in  which  that  court  defined  a  "bill  of  credit^" 
Court  may  be  removed  from  his  office  by  a!  prohibited  by  the  national  constitution,  to  be  a 
concurrent  vote  of  two-thirds,  neither  the  ap-  bill  issued,  as  currency,  by  a  State  and  on  the 
pellate  tribunal,  nor  the  office  itself,  shall  be  credit  of  the  State.  The  notes  of  the  Bank 
subject  to  legislative  abolition.  of  the  Commonwealth,  though  issued  by  and  in 

There  is  a  radical  difference  in  the  stability  j  the  name  of  the  State  of  Kentucky,  were  not 
of  the  supreme  and  inferior  courts.     The  first]  issued  on  the  credit  of  the  State,  but  expressly 


is  constitutional — the  last  are  only  statutory. 
As  the  constitution  itself  establishes  the  Court 
of  Appeals,  this  tribunal  can  be  abolished  by 
a  change  of  the  constitution  alone.  It  would 


on  the  exclusive  credit  of  a  nominal  capital 
dedicated  by  the  charter — and  this  known  fact 
produced  the  rapid  depreciation  of  those  notes; 
and,  consequently,  the  same  Supreme  Court 


be  certainly  incompatible  with  the  genius  of  of  the  United  States,  affirmed  the  said  decision 
the  constitution  to  abolish  the  circuit  courts,  of  the  Appellate  Court  of  Kentucky,  as  it  was 
merely  to  get  clear  of  the  incumbent  judges:  I  compelled  to  do  by  its  own  authority,  in  Craig 
Yet,  as  the  power  to  abolish  exists,  the  motive  j  vs.  Missouri,  unless  it  had  overruled  so  much 
of  the  abolition  cannot  judicially  affect  the  i  of  that  decision  as  declared  that  it  was  an  in 
validity  of  the  act.  And,  as  the  organization  j  dispensable  characteristic  of  a  prohibited  "bill 


of  inferior  courts  is  deferred,  by  the  constitu 
tion,  to  legislative  experience  and  discretion; 
and  as,  moreover,  a  new  system  of  such  courts 
may  often  be  usefully  substituted  for  one  found 
to  be  ineligible,  the  legislature  ought  not  to 
be  restrained  from  certain  amelioration,  by  a 
fear  of  shaking  the  stability  of  the  judiciary. 
The  constitutional  inviolability  of  the  Court  of 
Appeals,  which  may  rectify  the  errors  of  the 
inferior  tribunals,  may  sufficiently  assure  judi 
cial  independence  and  rectitude. 

The  fundamental  immutability  of  the  Court 
of  Appeals,  and  the  value  of  the  durable  ten- 


of  credit,"  that  it  should  be  issued  on  the 
credit  of  the  State.  There  is  much  reason  for 
doubting  the  correctness  of  these  decisions 
by  the  national  judiciary — and,  if  they  be  main 
tained,  there  is  good  cause  for  apprehending 
thlat  the  beneficent  policy  of  the  interdiction  of 
State  bills  of  credit  may  be  entirely  frustrated, 
and  the  constitutional  prohibition  altogether 
paralyzed  or  eluded. 

When  the  validity  of  the  statutes  retrospect 
ively  extending  replevins  was  brought  before 
the  Court  of  Appeals,  the  three  judges  then 
constituting  that  court,  (Messrs.  Boyle,  chief 


ure  by  which  the  judges  hold  their  offices,  have  justice,  and  Owsley  and  Mills,  judges,)  de 

ViP.P.n  imnvPSSi Vf*l v  illn sirn.tpfl   in  tl-m  liic"+r\vtr  onr?      lii^rn-Arl    c^ncivo.tp   r\riinirme     nil  /^nnrMTrvincP  in  t.lii 


been  impressively  illustrated  in  the  history  and 
results  of  "the  relief  system,"  and  resulting 
"old  and  new  court,"  which  agitated  Kentucky 
almost  to  convulsion  for  several  years — the 
most  pregnant  and  memorable  in  the  annals 
of  the  State.  That  system  of  legislative 
"relief,"  as  it  was  miscalled,  was  initiated  in 
1817-18,  by  retrospective  prolongations  of  re 
plevins  of  judgments  and  decrees — and  it  was 
matured,  in  1820,  by  the  establishment  of  the 
Bank  of  the  Commonwealth,  without  either 
capital  or  the  guaranty  of  state  credit,  and  by 
subsidiary  enactments  extending  replevins  to 
two  years  in  all  cases  in  which  the  creditor 
should  fail  to  endorse  on  his  execution  hiacon- 


livered  separate  opinions,  all  concurring  in  the 
conclusion  that  those  statutes,  so  far  as  they 
retro-acted  on  contracts  depending  for  their  ef 
fect  on  the  law  of  Kentucky,  were  inconsistent 
with  that  clause  in  the  federal  constitution, 
which  prohibits  the  legislatures  of  the  several 
states  in  the  union  from  passing  any  act  "im 
pairing  the  obligation  of  contracts,"  and  also, 
of  course,  with  the  similar  provision  in  the 
constitution  of  Kentucky,  inhibiting  any  such 
enactment  by  the  legislature  of  this  State.  A 
more  grave  and  eventful  question  could  not 
have  been  presented  to  the  court  of  umpirage. 
It  subjected  to  a  severe,  but  decisive  ordeal, 
the  personal  integrity,  firmness  and  intelligence 


348 


SKETCH  OF  THE 


of  the  judges,  and  the  value  of  that  degree  of 
judicial  independence  and  stability  coutempla- 


tensiou  of  replevin  in  Kentucky,  was  uncon 
stitutional  and  void. 


ted  by  the  constitution.  The  question  involved  j  Unanswerable  and  conclusive  as  this  mere 
was  new  and  vexed;  and  a  majority  of  the  j  skeleton  of  the  court's  argument  may  be,  yet 
people  of  the  State  had  approved,  and  were,  the  decision  excited  a  great  outcry  against  the 
as  they  seemed  to  think,  vitally  interested  in  |  judges.  Their  authority  to  disregard  a  legis- 


maintaining  their  constitutional  power  to  enact 
such  remedial  statutes. 

Under  this  accumulated  burthen  of  responsi- 


lative  act  as  unconstitutional  was,  by  many, 
denied,  and  they  were  denounced  as  ''usurpers 
— tyrants — kings.*'  At  the  succeeding  session 


bility,  however,  the  court,  being  of  the  opinion  j  of  the  legislature,  in  the  fall  of  1823,  a  long, 
that  the  acts  impaired  the  obligation  of  con-  verbose,  and  empty  preamble  and  resolutions, 
tracts  made  in  Kentucky  antedecedently  to  for  addressing  them  out  of  office,  were  repor- 
their  date,  honestly  and  firmly  so  decided,  |  ted  by  John  Rowan,  to  which  the  judges  re - 
without  hesitation  or  dissent.  The  court  ar-  I  sponded  fully  and  most  effectually.  But  after 
gued,  1st.  That  every  valid  contract  had  two  !  an  able  and  boisterous  debate,  the  preamble 

and  resolutions  were  adopted  by  a  majority  of 
less  than  two-thirds.  The  judges — deter 
mined  to  stand  or  fall  by  the  constitution — re 
fused  to  abdicate.  At  the  next  session  of  the 
legislature,  in  1824,  there  then  being  a  still 
larger  majority  against  the  judges  and  their 
decision — but  not  quite  two-thirds — the  domi 
nant  party,  now  become  furious  and  reckless, 
passed  an  act,  mis- entitled  "an  act  to  reorganize 
the  Court  of  Appeals;"  the  object  and  effect 
of  which,  if  sustained,  were  to  abolish  the  "old- ' 


kinds  of  obligation — the  one  moral,  the  other 
legal  or  civil;  that  the  fundamental  interdicts 
applied  to  the  legal  obligation  only,  because, 
'as  moral  obligations  are  as  immutable  as  the 
laws  of  God,  and  depend  on  the  consciences 
of  men,  and  therefore  cannot  be  impaired  by 
human  legislation  or  power,  consequently,  it 
would  be  ridiculously  absurd  to  suppose  that 
the  constitution  intended  to  interdict  that 
which,  without  any  interdiction,  could  not  be 
done.  2nd.  That  as  moral  obligation  results 


from  the  sanctions  of  natural  law,  so  civil  ob-  I  constitutional  "court,"  and  substitute  a 

ligation  arises  from  the  sanctions  of  human  law;   legislative  "court." 

that,  wherever  the  laws  of  society  will  not  up-       The  "new  court"  (consisting  of  William  T. 


hold  nor  enforce  a  contract,  that  contract  pos 
sesses  no  civil  obligation,  which,  whether  moral 
or  civil,  is  the  chain,  tie ,  or  ligature  which  binds , 
coerces,  persuades,  or  obliges  the  obligor;  that 
all  civil  obligation,  therefore,  springs  from  and 
is  regulated  by  the  punitory  or  remedial  power 
of  human  law;  that  the  destruction  or  with 
drawal  of  all  such  power,  must  annihilate  all 
merely  civil  obligation;  that,  consequently, 
that  which  impairs  such  power  must,  to  the 
same  extent,  impair  such  obligation;  aad,  that, 
whatever  renders  the  remedial  agency  of  the 
law  less  certain,  effectual,  or  valuable,  impairs 
it;  and,  also,  necessarily  impairs,  therefore, 
the  obligation  which  it  creates.  3d.  That 
the  civil  obligation  of  a  contract  depends  on 
the  law  of  the  place  when  and  where  it  is 
made;  and  that  any  subsequent  legislation  that 
essentially  impairs  the  legal  remedy  for  main 
taining  or  enforcing  that  contract,  must  con 
sequently,  so  far,  impair  its  legal  obligation. 
4th.  That,  if  a  retro-active  extension  of  re 
plevin  from  three  months  to  two  years  would 
not  impair  the  obligation  of  a  contract  made 
tinder  the  shorter  replevin  law,  the  like  pro 
longation  to  one  hundred  years  would  not  im 
pair  the  obligation;  and,  if  this  would  not,  the 
abrogation  of  all  legal  remedy  could  not.  5th. 
That  it  is  impossible  that  legislation  can  de 
stroy  or  impair  the  legal  obligation  of  contracts, 
otherwise  than  by  operating  on  the  legal  rem 
edies  for  enforcing  them;  and,  that  consequent 
ly,  any  legislation  retro-actively  and  essen 
tially  deteriorating  legal  remedy,  as  certainly 
and  essentially  impairs  the  legal  obligation  of 
all  contracts  on  which  it  so  retro-acts:  And, 
therefore,  that  the  retrospective  ex- 


Barry,  chief-justice,  and  James  llaggin,  John 
Trimble,  and  RezinH.  Davidge,  judges,)  took 
unauthorzied  possession  of  the  papers  and  re 
cords  in  the  office  of  the  Court  of  Appeals, 
appointed  Francis  P.  Blair  clerk,  and  attempt 
ed  to  do  business  and  decide  some  causes, 
their  opinions  on  which,  were  published  by 
Thomas  B.  Monroe,  in  a  small  duo-decimo 
volume,  which  has  never  been  regarded  or 
read  as  authority.  The  judges  of  the  constitu 
tional  Court  of  Appeals  were  thus  deprived, 
"without  their  consent,  of  the  means  of  dis 
charging  official  duties  properly;  and,  the  peo 
ple  not  knowing  whether  the  "old"  or  the 
"new  court"  was  the  constitutional  tribunal 
of  revision,  some  appealed  to  one,  and  some 
to  the  other.  In  this  perplexing  crisis  of  ju 
dicial  anarchy,  the  only  authoritative  arbiter 
Avas  the  ultimate  sovereign — the  freemen  of 
the  State  at  the  polls.  To  that  final  and  only 
tribunal,  therefore,  both  parties  appealed; 
and  no  period,  in  the  history  of  Kentucky,  was 
ever  more  pregnant,  or  marked  with  more  ex 
citement  or  able  and  pervading  discussion, 
than  that  which  immediately  preceded  the  an 
nual  elections  in  the  year  1825.  The  porten 
tous  agony  resulted  in  the  election,  to  the 
House  of  Representatives,  of  a  decisive  ma 
jority  in  favor  of  the  "old  court,"  and  against 
the  constitutionality  of  the  "new  court."  But 
only  one-third  of  the  senators  having  passed 
the  ordeal  of  that  election,  a  small  "new  court" 
majority  still  remained  in  the  Senate;  and, 
disregarding  the  submission  of  the  question  to 
the  votes  of  the  people,  that  little  majority 
refused  to  repeal  the  "reorganizing  act,"  or 
ackncmlfdge  the  existence  of  the  "old  court." 


COURT  OF  APPEALS.  349 


This  unexpected  and  perilous  contumacy,  ljudicial  independeuce  which  it  guaranties.  It 
brought  the  antagonistic  parties  to  the  brink  I  demonstrates  that,  if  the  appellate  judges  had 
of  a  bloody  revolution.  For  months  the  Com-  ;  been  dependent  on  a  bare  majority  of  the 
mouwealth  -was  trembling  on  the  crater  of  a  :  people  or  their  representatives,  the  constitution 
heaving  volcano.  But  the  considerate  prudence  |  would  have  been  paralyzed,  justice  dethroned, 
of  the  "old  court  party"  prevented  an  erup-  land  property  subjected  to  rapine,  by  tumultu- 
tion,  by  forbearing  to  resort  to  force  to  restore  !  ous  passions  and  numerical  power.  And  its 
to  the  "old  court,"  its  papers  and  records,  I  incidents  and  results  not  only  commend  to  the 
which  the  minority  guarded,  in  Blair's  custody,  j  gratitude  of  the  living  and  unborn,  the  pro- 
by  military  means — and,  also,  by  appealing,  j  scribed  judges  and  the  efficient  compatriots 


once  more,  to  the  constituent  body,  in  a  printed 
manifesto  prepared  by  George  Robertson, 
signed  by  the  members  constituting  the  ma 
jority  of  the  popular  branch  of  the  legislature, 
and  exposing  the  incidents  of  the  controversy 
and  the  conduct  of  the  defeated  party.  The 
result  of  this  last  appeal  was  a  majority  in  the 


who  dedicated  their  time  and  talents  for  years 
to  the  rescue  of  the  constitution,  but  also,  im 
pressively  illustrate  the  object  and  efficacy  of 
the  fundamental  limitations  on  the  will  of  the 
majority — that  is,  the  ultimate  prevalence  of 
reason  over  passion — of  truth  over  error — 
which,  in  popular  governments,  is  the  sure 


Senate,  and  an   augmented  majority  in    the  j  offspring  only  of  time  and  sober  deliberation, 
House  of  Represetativcs  in  favor  of  repealing  which  it  is  the  object  of  constitutional  checks 
as  unconstitutional,  the  "act  to  reorganize  the 
Court  of  Appeals."     That  act  was  according 
ly  repealed  in  the   session  of  1826-7,  by  "an 


to  ensure. 


As  first  and  now   organized,  the   Court  of 
Appeals  consisted   of   three  judges,   one    of 


act  to  remove  the  unconstitutional  obstructions  whom  is  commissioned  the  "Chief  Justice  of 

will  nil    lio'v**     V\o/ivi     flivn-wm      in      flirt     iiro  ir     r\P      +Virt      T^Ant  iinl'Tr   "       Tvi   fTi/»    TTAOV   1  ftHl       f  Tio  tin  mKov  txroa 


which  have  been  thrown  in  the  way  of  the 
Court  of  Appeals,"  passed  by  both  houses  the 
30th  December,  1826 — the  Governor's  objec 
tions  notwithstanding.  The  "new  court"  van- 


Kentucky."  In  the  year  1801,  the  number  was 
increased  to  four,  and  Thomas  Todi  (who  had 
been  clerk  of  that  court,  and  in  the  year  1807 
was  appointed  a  judge  of  the  Supreme  Court 


ished,  and  the  "old  court,"  redeemed  and  re-  of  the  United  States)  was  the  first  who  was 
instated,  proceeded,  without  further  question  fourth  judge.  In  the  year  1813,  the  number 
or  obstruction,  in  the  discharge  of  its  accus-  was  prospectively  reduced  to  three;  and,  all 
tomed  duties.  the  incumbents  having  immediately  resigned, 

As  soon  as  a  quietus  had  been  given  to  this  j  two  of  them  (Boyle  and  Logan)  were  instantly 
agitating  controversy,  John  Boyle,  wrho  had  |  re-commissioned,  and  Robert  Trimble,  who 
adhered  to  the  helm  throughout  the  storm  in  j  was  commissioned  by  Gov.  Shelby,  having 
hope  of  saving  the  constitution,  resigned  the  !  declined  to  accept,  Owsley,  who  had  been  one 
chief-justiceship  of  Kentucky,  and  George  M.  I  of  the  four  judges  who  had  resigned,  was  after- 
Bibb,  a  distinguished  champion  of  the  "relief  "  wards  also  re-commissioned;  and  ever  since 
and  "new  court"  parties  was,  by  a  relief  gov-  that  time,  the  court  has  consisted  of  three 
ernor  and  Senate,  appointed  his  successor,  (judges  only. 

Owsley  and  Mills  retained  their  seats  on  the  |  All  the  judges  have  received  equal  salaries, 
appellate  bench  until  the  fall  of  1828,  when  At  first  the  salary  of  each  judge  was  $666,66. 
they  also  resigned,  and,  being  re-nominated  by  j  in  t}ie  year  igoe,  itwas  raised  to  $1000;  in  the 
Gov.  Metcalfe,  who  had  just  succeeded  Gov.  j  year  I815,to$1500;  in  the  year  1837,  to  $2000; 


Desha,  they  were  rejected  by  a  relief  senate, 
and  George  Robertson  and  Joseph  R.  Uuder- 


and  in  the  year  1843,  it  was  reduced  to  $1500. 
During  the  prevalence  of  the  paper  of  the  Bank 


wood  (both   "anti-relief"  and  "old  court")  >0f  the  Commonwealth, the  salaries  were  paid 
were  appointed  to  succeed  them.     Then  Bibb  hn  that  currency,  which  was  so  much  depre- 
forthwith  resigned,  and  there  being  no  chief-   eiated  as,  for  some  time,  to  reduce  the  value  of 
justice  until  near  the  close  of  1829,  these  two  eacn  salary  to  about  750. 
judges  constituted  the  court  and,  during  that  |      Th    folfowi      ig  a  chrouological  catalogue 
year,  declared  null  and  void  all  the  acts  and  j    f    fa     namea  0?  all  who  have  been  judge*  of 
decisions  ot  the  "new  court,"  and  disposed  of,  ,,     Armpilatp  ronrt  of  Kentnokv 
about  one  thousand  cases  on  the  docket  of  the  !  "1C  APPellatc 
Court  of   Appeals.       In  December,     1829,i  CHIEF  JUTICCES. 

Robertson  was  appointed    chief-justice,   and  Harry     Innis,   commissioned  June  18,  1792. 
thus,  once  more,  "the  old  court"  was  complete,  |  George  Muter,        "  Dec.     7,1792. 

homogeneous  and  peaceful,  and  the  most  im-  j  Thomas  Todd,       •"  Dec.  13,  1806. 

portant  question  that  could  engage  the  coun- { Felix  Grundy,  April  11,  1807. 

cils  or  agitate  the  passions  of  a  state,  was  set- 1  Ninian  Edwards.      ^  Jan.      5,  1808. 

tied  finally,  and  settled  right.  |  Geo.  M.  Bibb,         "  May  30,  1809. 

This  memorable  contest  between  the  con- !  John  Boyle,  M'cli  20,  1810. 

stitution  and  the  passions  of  a  popular  ma-   Geo.  M.  Bibb,*       "  Jan.     5,  1837. 

Geo.  Robertson,       "  Dec.  16,  1829. 

E.  M.  Ewing,  April   7,1843. 


jority — between  the  judicial  and  the  legislature 
departments — proves  the  efficacy  of  Kentucky's 
constitutional  structure,  and  illustrates  the 
reason  and  the  importance  of  that  system  of 


Tho?.  A.  Marshall,  "  June    1,1847. 

'Resigned  P?0   23>  1828. 


350 


SKETCH  OF  THE 


JUDGES. 

Benj.  Sebastian,  commissioned  June   28,  1792. 


Caleb  Wallace, 
Thomas  Todd, 
Felix  Grundy, 
Niniaii  Edwards, 
Robert  Trimble, 
William  Logan,* 
Geo.  M.  Bibb, 
John  Boyle, 
William  Logan, 
James  Clark, 
William  Owsley, 
John  Rowan, 
Benjamin  Mills, 
Geo.  Robertson, 
Jos.  R.  Underwood, 
Richard  A  Buckner, 
Samuel  S.  Nicholas, 
Ephriam  M.  Ewing, 
Thos.  A.  Marshall, 
Daniel  Breck, 
James  Simpson, 


June 

Dec. 

Dec. 

Dec. 

April 

Jan. 

Jan. 

April 

Jan. 


28,  1792. 

19,  1801. 

10,  1806. 
13,  1806. 

13,  1807. 

11,  1808. 
31,  1808. 

1,  1809. 

20,  1810. 
March  29,  1810. 
April     8,  1810. 

14,  1819. 
16,  1820. 
24,  1828. 
24,  1828. 

21,  1829. 
23,  1831. 

5,  1835. 


Jan. 

Feb. 

Dec. 

Dec. 

Dec. 

Dec. 

March 

March  18,  1835. 

April      7,  1843. 

June       7,  1847. 
*Resigned  January  30,  1808. 
Of  the   chief-justices,  Muter,   Boyle,   and 
Robertson  were  in  commission,  collectively, 
about  41  years — Muter  for  about  11,  Boyle  16, 
and  Robertson  nearly  14  years;  and  of  all  the 
justices  of  the  court,  Logan,  Mills,  and  Ows 
ley  held  their  stations  longest. 

In  the  year  1803,  Muter,  very  poor  and 
rather  superannuated,  was  induced  to  resign  by 
the  promise  of  an  annuity  of  $300,  which, 
being  guarantied  by  an  act  of  the  legislature  in 
good  faith,  was  complained  of  as  an  odious 
and  unconstitutional  "provision,"  and  was 
taken  away  by  a  repealing  act  of  the  next 
year. 

Under  the  first  constitution  of  1792,  the  ap 
pellate  judges  were  required  to  state  in  their 
opinions  such  facts  and  authorities  as  should 
be  necessary  to  expose  the  principle  of  each 
decision.  But  no  mode  of  reporting  the  de 
cision  was  provided  by  legislative  enactment 
until  1815,  when  the  governor  was  authorized 
to  appoint  a  reporter.  Previously  to  that  time, 
James  Hughes,  an  eminent  "land  lawyer," 
had,  at  his  own  expense,  published  a  volume 
of  the  decisions  of  the  old  District  Court  of  Ken 
tucky,  rendered  in  suits  for  land — commencing 
in  1785  and  ending  in  1801;  Achilles  Sneed, 
clerk  of  the  Court  of  Appeals,  had,  in  1805,  un 
der  the  authority  of  that  court,  published  a  small 
volume  of  miscellaneous  opinions,  copied  from 
the  court's  order  book;  and  Martin  D.  Hardin, 
a  distinguished  lawyer,  had,  in  1810,  published 
a  volume  of  the  decisions  from  1805  to  1808, 
at  the  instance  of  the  court  in  execution  of  a  leg 
islative  injunction  of  1807,  requiring  the  judges 
to  select  a  reporter.  Geo.  M.  Bibb  was  the  first 
reporter  appointed  by  the  Governor.  His  re 
ports,  in  four  volumes,  include  opinions  from 
1808  to  1817.  Alexander  K.  Marshall,  Wm. 
Littell,  Thomas  B.  Monroe,  John  J.  Marshall, 
James  G.  Dana,  and  Benj.  Monroe  were,  suc 
cessively,  appointed,  and  reported  afterwards. 


The  reports  of  the  first,  are  in  three  volumes 
— of  the  second,  in  six — of  the  third,  in  seven 
— of  the  fourth,  in  seven — of  the  fifth,  in  nine 

•and  the  last,  who  is  yet  the  reporter,  has 
published  seven  volumes.  Consequently, 
there  arc  now  forty-six  volumes  of  the  repor 
ted  decisions  of  the  Court  of  Appeals  of  Ken 
tucky.  Of  these  reports,  Hardin's,  Bibb's, 
and  Dana's  are  most  accurate — Littell' s 
Thomas  B.  Monroe's  and  Ben.  Monroe's  next. 
Those  of  both  the  Marshall's  are  signally  in 
correct  and  dsfici«ut  in  execution.  Dana's 
in  execution  and  in  the  character  of  the  cases, 
are  generally  deemed  the  best.  Of  the  de 
cisions  in  Dana,  it  has  been  reported  of  Judge 
Story  that  he  said  they  were  the  best  in  the 
Union — and  of  Chancellor  Kent,  that  he  knew 
no  state  decisions  superior  to  them.  And  that 
eminent  jurist,  in  the  last  edition  of  his  Com 
mentaries,  has  made  frequent  reference  to 
opinions  of  chief-justice  Robertson,  and  ha* 
commended  them  in  flattering  terms. 

The  comprehensive  jurisdiction  of  the  court 
imposes  upon  it  duties  peculiarly  onerous.  An 
act  of  the  Assembly  of  1796,  confers  on  this 
Appellate  Court  jurisdiction  of  appeals  or  writs 
of  error,  "in  cases  in  which  the  inferior  courts 
have  jurisdiction."  A  writ  of  error  may  be 
issued  to  reverse  a  judgment  or  decree  for 
one  cent;  but,  by  an  act  of  1796,  no  appeal 
can  be  prosecuted  to  reverse  a  judgment  or 
decree,  unless  it  relate  to  a  franchise  or  free 
hold,  or  (if  it  do  not)  unless  the  amount  of  it, 
"exclusive  of  costs,"  be  at  leat  $100.  But  in 
cases  of  decretal  divorces,  and  in  fines  for  riots 
and  routs,  the  legislature  has  denied  to  the 
court  any  revising  jurisdiction.  Still,  although 
it  has  no  original  jurisdiction  excepting  only 
in  the  trial  of  clerks,  and  although  it  has  no 
criminal  jurisdiction  in  any  case  of  felony,  the 
average  number  of  its  annual  decisions  has,  for 
many  years,  been  about  five  hundred.  The 
court  is  required  to  hold  two  terms  in  each 
year — one  commencing  the  first  Monday  in 
May,  the  other  the  first  Monday  in  September; 
and  no  term  is  allowed  to  be  less  than  forty- 
eight  juridical  days.  By  a  rule  of  court,  any 
party  may  appear  either  by  himself  or  his 
counsel,  and  in  person  or  by  brief.  And  a 
majority  of  the  cases  are  decided  without  oral 
argument. 

A  statute  of  1816  enacted,  that  "all  reports 
of  cases  decided  in  England  since  tbe  4th  of 
July,  1776,  should  not  be  read  in  court  or  cited 
by  the  court."  The  object  of  this  strange  en 
actment  was  to  interdict  the  use  of  any  British 
decision  since  the  declaration  of  American  In 
dependence.  The  statute,  however,  literally 
imports,  not  that  no  such  decision  shall  be 
read,  but  that  "all"  shall  not  be.  And  this 
self-destructive  phraseology  harmonises  with 
the  purpose  of  the  act — that  is,  to  smother  the 
light  of  science  and  stop  the  growth  of  juris 
prudence.  BiTt  for  many  years,  the  Court  of 
Appeals  inflexibly  enforced  the  statute — not  m 
its  letter,  but  in  its  aim.  In  the  reports,  how- 


COUM  OF  APPEALS. 


351 


ever,  of  J.  J.  Marshall,  and  Dana,  and  Ben. 
Monroe,  copious  references  are  made  (without 
regard  to  this  interdict)  to  post-revolutionary 
cases  and  treatises  in  England,  and  now  that 
statute  may  be  considered  dead. 

The  Appellate  court  of  Kentucky  has  gen 
erally  been  able,  and  always  firm,  pure,  and 
faithful.  It  has  been  illustrated  by  some 
names  that  would  adorn  any  bench  of  justice  or 
age  of  jurisprudence.  And  it  might  hare  been 


oftener  filled  by  such  jurists,  had  not  a  suicidal 
parsimony  withheld  from  the  judges  an  ade 
quate  compensation  for  the  talents,  learning, 
labor  and  responsibility  which  the  bsst  in 
terests  of  the  commonwealth  demand  for  the 
judicial  service,  in  a  court  appointed  to  guard 
the  rights  and  the  liberties  of  the  people,  and 
to  settle  conclusively  the  laws  of  the  common 
wealth. 


ADDRESS 


Address  delivered  by  Mr.  Robertson  in  the  Chapel 

of  Morrison  College,  on  the  22nd  of  February, 

1852,  at  the  request  of  the  pupils  of  the  Law 

Department  of  Transylvania  University. 

Kentucky  could  not,  this  day,   perform  a 

service  more  grateful  or  more  useful  than  to 

commemorate,   in    a  becoming    manner,  the 

double  anniversary  of  the  birth  of  the  noblest 

of  illustrious  Americans,  and  of  a  battle  which 

shed  a  bright  halo  of  glory  around  the  column 

of  her  own  fame.     The  advent  on  earth  of  that 

wonderful  man  may  be  as   eventful   to  the 

temporal,  as  that  of  the  crucified  Messiah  will 

be  to  the  eternal  welfare  of  mankind.     And, 

in  the  magic  fight  of  Buenna  Vista,  Kentuck- 


the  troubled  scenes  of  earth.  Such,  always,  is 
the  slow-ripening  fruit  of  rare  merit — the  pos 
thumous  destiny  of  God-like  deeds. 

Unheeded  while  he  lived,  Socrates,  was 
doomed  to  the  hemlock  for  teaching  the  enno 
bling  doctrines  of  God's  unity,  and  man's  im 
mortality,  in  defiance  of  the  polytheism  and 
carnality  of  an  idolatrous  generation.  Galli- 
leo  was  a  martyr  to  his  premature  intimation  of 
the  fact,  then  deemed  by  the  Hierarchy  contra 
ry  to  the  Bible,  that  the  earth  revolves  around 
the  sun.  Copernicus  was  dead  long  before  his 
theory  of  the  solar  system  was  acknowledged. 
Bacon  tasted  none  of  the  fruits  of  his  novvin 
,  and  died  in  disgrace  .before  his  in- 


gallant  sons  of  other  States,  and,  as  a  forlorn 
hope,    against    mighty   odds,  gloriously    tri 
umphed  on  that  bloody  and  hard-fought  iield. 
We  should  honor  the  survivors  of  that  devo 
ted  band  and  never  cease  to  cherish  the  mem-  j 
ories  of  those  who,  sealing  with  their  blood  I 
their  own  and  their  country's  glory,  fell,  to 
rise  no  more  until  tho  judgment  day. 

But  the  times  make  it  more  appropriate  to 
this  occasion  to  consider  the  life  of  the  bene 
factor  born  than  the  history  of  that  great  victory 
won. 

A  good  man  lives,  not  for  the  present  chiefly, 
but  for  the  future — not  for  himself  only,  but 
also  for  his  country  and  his  race.  Such  a 
man,  pre-eminently,  was  GEORGE  WASHING 
TON.  His  was  a  model  life.  Full-orbed  and 
spotless,  its  light  may  be  as  benificcnt  to  the  I 
moral,  as  that  of  a  cloudless  sun  is  to  the 
physical  world.  It  was  his  lot  to  be  born,  to 
live,  and  to  die  in  a  country  and  at  a  time 
signally  interesting  and  eventful  to  mankind  | 
— a  country  which  seems  to  have  been  re 
served  by  Providence  as  the  fittest  theatre  of 
moral  development  and  social  progress — and  a 
transition  period  when  the  condition  of  the 
old  world  supplied  the  fruitful  seeds  of  civil 
and  religious  liberty  for  transplantation, 
growth,  and  fructification,  on  the  virgin  soil 
and  congenial  clime  of  the  new.  And,  on  that 
arena,  and  at  that  crisis,  it  was  his  fortune  so 
to  act  his  part  in  the  momentous  drama  of  his 
day  as  to  embalm  his  name  in  the  human 
heart  as  long  as  it  shall  beat  with  a  virtuous  j 
or  grateful  emotion.  Washington  dead  is,  to 
the  present  and  the  future,  worth  even  more 
than  Washington  living.  Though  one  hun 
dred  and  twenty  years  have  elapsed  from  his 
birth  and  more^than  half  a  century  from  his 
death,  his  virtues  are  more  fragrant  and  his 
name  more  hallowed  now,  than  when  he  left 


Columbus  fell  a  victim  of  persecution  without 
even  the  consolation  of  a  prophetic  glimpse  of 
the  glorious  destiny  of  the  American  world  or  of 
his  own  deathless  renown  as  its  discoverer  and 
the  first  Pioneer  of  its  civilization.  And  Wash- 
ngton,  too — though  more  fortunate  in  his  life, 
and  more  honored  at  his  death — had,  while  he 
lived,  to  encounter,  like  all  human  benefactors, 
envy,  calumny,  and  blind  party  spirit;  and  took 
leave  of  his  country,  unconscious  that,  in  less 
than  half  a  century,  it  would  be  the  most  happy 
and  hopeful  under  the  sky,  or  that  his  own 
statue  would  be  the  central  figure  in  the  pan 
theon  of  men.  But,  though  the  declining  sun 
of  his  earthly  pilgrimage  was  partially  ob 
scured  by  envious  clouds,  the  serener  star 
of  his  fame,  rising  higher  and  higher, 
and  growing  tin  its  accent  larger  and  more 
effulgent,  has  nowr  reached  its  meridian 
and  beams  with  a  matchless  ray  in  the  centre 
of  a  constellation  that  will  never  fade  away. 

The  light  that  pours  from  that  refulgent  orb 
— unlike  the  lurid  glare  of  Mars,  or  the  meteor 
blaze  of  the  victorious  chieftain,  or  the  decep 
tive  phosphorescence  of  the  demagogue — is 
chaste  and  parental  like  that  of  vestal  fire 
gleaming  on  the  altar  of  virgin  purity;  and 
will  ever  safely  guide  the  virtuous  citizen  and 
statesman  in  the  pathway  of  private,  as  Avell 
as  of  public  life.  This  distinguished  destiny 
was  the  offspring — not  of  furtime,  nor  of  war, 
nor  of  what  men  call  genius,  but  of  right  prin 
ciples  and  unceasing  allegiance  to  them — of 
constant  devotion  to  duty  in  all  the  walks  of 
life,  and  of  an  unreserved  dedication  of  head 
and  heart  to  virtue,  to  country,  and  to  God. 

As  a  man,  Washington  was  modest,  self- 
denying  and  upright — as  a  citizen,  he  was 
just,  prudent,  and  patriotic — as  a  commander  of 
armies,  he  was  cautious,  skilful,  and  firm — a? 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852. 


353 


a  civil  magistrate,  he  was  wise,  conscientious 
and  self-sacrificing — exhibiting  in  all  his  life, 
public  and  private,  in  peace  and  in  war,  in 
Church  and  in  State,  virtues  and  graces  rarely, 
if  ever,  combined  in  any  other  human  charac 
ter,  and  worthy  of  imitation  by  all  men  in  all 
conditions  and  in  all  times.  He  seems  to  have 
been  born  for  his  country,  and  his  age;  and  the 
country  and  the  age  seem  to  have  been  pre 
pared  by  Providence  for  just  such  a  man.  With 
out  his  aid  our  country's  independence  might 
not  have  been  achieved  or  blessed — without  his 
counsels  the  Constitution  of  the  United  States 
might  not,  and  probably  would  not,  have  been 
adopted — and  without  his  gurdian  care  and 
the  magic  influence  of  his  name  that  hopeful 
offspring  of  "the  times  that  tried  men's  souls," 
might  and  almost  certainly  would,  have  been 
strangled  in  the  cradle  of  its  existence. 

His  administration  of  the  Executive  Depart 
ment  during  the  first  eight  years  after  the  in 
auguration  of  the  General  Government  was  an 
admirable  illustration  of  the  beau-ideal  of  a 
constitutional  President.  Hecarefully  studied 
his  duty  and  sinceiely  endeavored  to  discharge 
it  for  the  public  good  alone.  No  personal  or 
party  consideration  controlled  his  official  con 
duct.  In  appointing  to  important  office  he 
consulted  superior  fitness  only — chtur  digjiiori, 
was  his  maxim ;  and  disregarding  the  importu 
nities  of  vulgar  suppliants  for  place,  and  giv 
ing  but  little  heed  to  subscription  papers  or 
other  procured  documents  of  recommendation, 
he  always  selected  those  he  deemed  best  qual 
ified  for  the  stations  to  which  he  called  them. 
He  considered  his  patronage  as  a  sacred  trust 
confided  to  him,  and  to  be  exercised  by  him, 
not  for  his  own  gratification,  but  for  his  coun 
try's  welfare;  and  he  never  presumed  to  per 
vert  it  from  its  constitutional  design  or  stooped 
to  prostitute  it  to  any  selfish  purpose  or  am 
bitious  aim.  By  his  stoical  firmness  and  com 
prehensive  patriotism  he  illustrated  the  true 
principles  of  the  National  Constitution,  nour 
ished  and  saved  it  in  its  perilous  youth,  raised 
it  to  robust  manhood,  and,  by  his  non-inter 
vention  heroism  in  1793,  rescued  his  country 
from  the  vortex  of  the  French  Revolution,  and 
set  his  seal  to  the  tmly  safe  international 
policy  of  Republics. 

But,  though,  in  his  moral  and  intellectual 
character,  he  combined  the  cardinal  elements 
of  a  good  and  great  man — though  his  life  hap 
pily  exemplified  the  personal  and  civic  virtues 
crowned  with  the  graces  of  a  pure  religion— 
though,  as  commandcr-in-chief  of  our  Revolu 
tionary  Army,  his  Fabian  prudence  and  extraor 
dinary  self  devotion  earned  for  him  a  diadem  of 
honor  eclipsing  any  that  ever  sparkled  on  the 
head  of  an  Alexander  or  a  Napoleon,  and  though 
the  unanimous  voice  of  his  countrymen  spon 
taneously  called  him  to  the  first  of  civil  sta 
tions — jGi  all  these  titles  to  grateful  remem 
brance,  rare  and  distinguished  as  they  were, 
would  not  consecrate,  as  it  is  consecrated,  his 
birth-day  to  religious  observance  and  patriotic 
45 


commemoration.  It  was  his  presiding  influence 
in  laying  the  foundations  of  our  Union;  his  agen 
cy  in  consolidating  its  peerless  superstructure 
— and,  above  all,  the  wisdom  and  benevolence 
of  his  Farewell  Address,  which  have  contrib 
uted  most  to  chrystalize  his  fame  and  to  en 
twine  around  it  an  amaranthine  wreath  of 
chaste  and  sun-light  glory. 

To  contemplate  such  a  character  and  review 
the  life  of  such  a  man  must  be  cheering  and 
eminently  useful.  For  that  patriotic  purpose 
chiefly,  we  have  all  come  here  to-day.  We 
have  not  come  to  indulge  in  idle  praises  of  the 
Father  of  his  Country;  his  memory  needs  not 
our  eulogy.  Our  purpose  is  nobler  and  more 
substantial  far;  it  is  to  learn  his  principles  and 
pledge  our  allegiance  to  them — to  recite  his 
counsels  and  resolve  to  follow  them.  And  if  ev 
ery  citizen  of  the  United  States  would  do  this 
in  the  proper  spirit  and  faithfully  profit  by  it 
as  he  ought,  this  Union  would  be  impregnable 
— Justice  would  be  sure — Liberty  would  be 
safe — Virtue  would  be  encouraged — Talents 
would  be  rewarded — our  Country  would  be 
peaceful,  happy,  and  truly  great — and  our  in 
stitutions  would  soon  be  rightly  understood 
and  commended  to  all  civilized  nations. 

At  a  crisis  so  pregnant  and  novel  as  the 
present,  the  occasion  of  our  assembling  could 
not  be  more  appropriately  or  usefully  improved 
than  by  considering  our  organic  institutions, 
and  the  precepts  of  him  who  was  their  chief 
architect.  But  time  will  circumscribe  our 
present  contemplations  to  a  very  general  no 
tice  of  the  Constitution  of  the  United  States 
as  it  came  from  the  hands,  and  was  illustrated 
by  the  admininistration  and  the  farewell  ad 
dress  of  Washington. 

The  people  of  the  thirteen  North  American 
Colonies,  long  trained  to  actual  freedom  and 
social  equality,  felt  it  to  be  their  duty  to  resist 
the  pretension  of  England  to  govern  them  "in 
all  cases  whatsoever,"  without  allowing  them 
the  benefit  of  representation  in  the  British 
Parliament;  and,  for  concerting  itnited  oppo 
sition,  they  constituted  the  first  "Continental 
Congress,"  which  met  in  Philadelphia,  Sept. 
5th,  1774,  with  unlimited  discretion  to  take 
care  of  "the  common  welfare;"  and  the  con 
stituent  political  bodies  then,  for  the  first  time, 
assumed  the  title  of  "the  United  States." 
That  initial  union,  without  any  formal  compact, 
was  not  only  voluntary  as  to  its  power  And  du 
ration,  but  purely  federal.  During  the  revo 
lutionary  war,  which  soon  succeeded,  "'articles 
of  confederation"  were  adopted  by  the  States, 
each  for  itself,  in  its  political  capacity,  and 
each,  by  express  stipulation,  retaining  absolute 
sovereignty.  That  league  of  independent 
sovereigns,  with  no  common  umpire  and  with 
out  any  other  Government  than  the  separate 
Governments  of  the  States,  each  acting  for 
itself  alone,  left  the  Union  dependent  on  the 
will  of  each  local  sovereignty  without  any  in 
herent  power  or  principle  of  life.  The  com 
mon  council  was  merely  advisory.  Its  sphere 


354 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852. 


of  authority  was  quite  cirumscribed,  and  con 
fined  to  what  was  "expressly  delegated."  It 
had  no  power  to  uphold  even  that.  Its  acts 
were  addressed  to  States,  and  in  no  sense  to 
persons;  and  were,  of  course,  not  laws,  but 
recommendations  merely,  which  might  be  ob 
served  or  disregarded  at  the  pleasure  of  all  or 
any  of  the  confederate  States.  That  con 
federation  had  not  one  element  or  faculty 
of  a  common  Government — to  the  existence 
of  which  the  right  to  enact  laws  for  the  whole 
people  and  the  self-sustaining  power  to  en 
force  them  against  every  citizen,  are  indispen 
sable. 

Wise  and  conservative  men  soon  saw  that 
the  maintenance  of  Union  and  of  the  liberties 
which  could  not  be  assured  without  it  would 
require  a  radical  re- organization — substituting 
a  union  of  the  people  for  that  of  States — a 
Government  for  a  league — a  National  Govern 
ment  for  a  confederate  compact  between  inde 
pendent  sovereignties  uncontrollable  by  any 
political  power  above  them.  Washington 
urged  the  absolute  necessity  of  some  such 
change  in  the  principle  of  the  Union,  and 
many  of  his  compatriots  concurred  with  him. 

As  early  as  1781,  Pelatiah  Webster,  in  an 
able  pamphlet,  demonstrated  the  insufficiency 
of  the  articles  of  confederation,  and  suggested 
a  Continental  Convention  for  improving  the 
instrument  of  Union.  In  1782,  Alexander 
Hamilton  urged  the  same  thing,  with  objects 
rather  more  explicit.  In  1784,  Noah  Webster, 
in  one  of  his  miscellaneous  publications,  pro 
posed  the  adoption  of  "a  neAv  system  of  gor- 
enment,  which  should  act,  not  on  the  States, 
but  directly  on  individuals,  and  vest  in  Con- 

fress  full  power  to  carry  its  laws  into  effect." 
o  far  as  we  know,  this  was  the  first  proposi 
tion  for  a  supreme  national  government — a 
constitution  of  national  sovereignty  instead  of 
a  league  among  sovereigns.  But  often  after 
wards  many  illustrious  citizens  urged  the  same 
thing.  In  April  1787,  James  Madison,  in  a 
letter  to  Edmond  Randolph  said:  "I  hold  it  for 
a  fundamental  point  that  an  individual  inde 
pendence  of  the  States  is  utterly  irreconcilable 
with  the  idea  of  an  aggregate  sovereignty.  I 
think,  at  the  same  time,  that  a  consolidation 
of  the  States  into  one  simple  republic  is  not 
less  attainable  than  it  would  be  inexpedient. 
Let  it  be  tried  then  whether  any  middle  ground 
can  be  taken  which  will  at  once  support  a  due 
supremacy  of  the  national  authority,  and  leave 
in  force  the  local  authorities,  so  far  as  they  can 
be  subordinately  useful.  Let  the  National  Gov 
ernment  be  armed  with  positive  and  complete 
authority  in  all  cases  where  uniform  measures 
are  necessary,  as  in  trade,  &c.,  &c."  This 
was,  probably,  the  first  recorded  proposal  of  a 
Constitution  of  a  General  Government,  na 
tional  and  supreme  as  to  all  national  interests, 
and  federal  also  with  local  supremacy  in  the 
States  to  the  extent  of  concerns  exclusively 
affecting  each  State  seperately  and  alone. 


^  the  constitution,  as'adopted,  establish 
ed  a  General  Government,  supreme  in  its  au 
thority  and  national  in  its  operation  on  the 
people  of  the  United  States,  may  be  demon 
strated  by  a  consideration  of  the  avowed  ob 
jects  of  its  adoption,  of  the  history  of  its 
ratification  in  each  State,  of  its  provisions, 
and  of  its  practical  operation  ever  since  it 
was  announced  as  "the  supreme  law  of  the 
land/'  Such  a  Government  could  not  be 
established  without  delegating  to  it  portions 
of  the  independent  sovereignty  of  the  States 
as  previously  confederated.  The  people  of 
the  States  alone  had  the  authority  to  make 
that  transfer,  and  thus  modify  and  subordinate 
their  State  sovereignty.  And  they  did  it— 
those  of  each  State  for  themselves—just  as 
they  established  their  local  Government.  The 
people  of  every  State  in  the  Union  are  indi 
vidually  parties  to  the  constitution.  It  binds 
each  and  all— is  addressed  to  each  and  all— 
and  is  a  law  over  each  and  all  of  them.  The 
prominent  objection  urged  in  each  State  Con 
vention  against  the  adoption  of  it  was  that  it 
constructed  a  National  Government  which 
would  operate  supremely  over  every  person 
within  the  limits  of  the  Union,  "an/thing 
in  any  State  Constitution  to  the  contrary  not 
withstanding."  And  that  objection  was  met, 
not  by  a  denial  of  the  allegation,  but  by  ar 
guments  to  prove  that  such  a  Government  was 
indispensably  necessary  for  the  Union  of  the 
States,  the  security  of  the  people,  and  the 
maintenance  of  national  honor  abroad  and  of 
peace  and  justice  at  home. 

A  political  constitution  is  organic  law.  The 
chief  difference  between  a  human  and  poli 
tical  constitution  is,  that  the  first 'organizes 
and  constitutes  animal  life,  and  the  last  or 
ganizes  and  constitutes  political  sovereignty 
Each  therefore,  is  for  the  same  reason  called 
a  constitution,  and  is  necessarily  supreme 
fundamental  and  inviolable.  Such  conse 
quently  must  be  the  true  character  of  the  "con 
stitution"  of  the  United  States— so  labelled 
on  its  front.  It  also  constructs  a  complete 
machinery  of  National  Government  and  elab 
orately  organizes  National  power.  It  was  in 
tended,  therefore,  to  be  law,  fundamental  and 
paramount:  and  to  remove  all  doubt,  the  peo 
ple,  when  they  adopted  it,  stereotyped  on  its 
face  that  it  "shall  be  the  supreme  law  of  the 
land.  As  such  a  law  it  has  always  operated 
since  the  first  inauguration  of  Washington; 
aud  as  such  a  law  it  will  continue  to  operate 
as  long  as  the  Union  shall  last  or  the  princi 
ples  of  Washington  shall  be  generally  re 
spected. 

The  people,  in  adopting  it,  expressly  sur 
rendered  many  of  the  highest  attributes  of 
State  sovereignty — such  as  the  power  to  coin 
money,  declare  war,  regulate  commerce,  estab 
lish  post  offices,  impair  the  obligation  of  con 
tracts,  pass  ex  post  facto  acts,  emit  bills  of 
credit,  (fee.  ;  and  delegated  the  most  useful  of 
these  and  other  powers  to  the  general  Govern 
ment.  The  Union  could  not  be  preserved  with 
out  a  national  government  vested  with  supreme 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852. 


355 


powers  co-extensive  with  all  the  interests  and 
objects  common  to  the  people  of  the  United 
States  as  one  presiding  nation,  for  all  interna 
tional  purposes  abroad,  and  for  such  at  home 
as  concern  domestic  peace,  harmony  and  jus 
tice: — as  to  all  those  ends,  all  the  people  of  all 
the  States  are  but  one  and  the  same  family — 
all  should  be  represented,  and  the  voice  of  a 
majority,  consistent  with  the  charter  of  asso 
ciation,  should  prevail  over  that  of  a  minority 
— the  interest  of  the  whole  must  be  preferred 
to  that  of  a  fraction — the  whole  must  govern 
each  and  every  part. 

No  other  theory  can  be  consistent  with  the 
Declaration  of  Independence,  the  representa 
tive  principle,  or  the  self-preserving  power  of 
the  U  nion.  No  State,  which  does  not  desire  to 
destroy  the  Union,  should  arrogate  or  wish  to 
exercise  exclusive  power  over  the  rights  or  in 
terests  of  the  people  of  other  States — common 
interests  should  be  regulated  and  controlled 
by  common  councils — and  all  such  interests 
as  belong  to  the  people  of  a  single  State 
should  be  regulated  by  that  State  alone. 

Such  was  the  purpose  and  such  is  the  true 
theory  of  the  constitution.    It  delegates   all 
national   power   to  the  General  Government, 
and  leaves  all  local  power  with  the  individ 
ual  States — which,  for  national  ends,  consti 
tute  but  one  nation,   and,  for  local  purposes, 
a   confedration  of  States.    The  powers  grant 
ed  to  the  common  government  are  necessarily 
supreme  and  plenary,  except  so  far  as  express 
ly  limited  by  the  constitution.     This  maybe 
illustrated  by  the  power  to  regulate  foreign 
commerce.     The    States    transferred    to    the 
General    Government    all   their    pre-existent 
power   over  that  entire  subject:  and  any  at 
tempt  made  by  a  State  to  interfere  with  it,  in 
any  way,  would  be  an  act  of  usurpation   and 
consequently  void.     Congress  must  therefore 
have  as   much  power  over  external  commerce 
as  each  of  the  States  had  when  politically  in 
dependent,  except  so  far  the  constitution  re 
quires  uniformity  of  regulation.     Each  Inde 
pendent  State,  before  the  adoption  of  the  con 
stitution,  had  as  much  authority  over  its  for 
eign  commerce    as    any  sovereign  nation   on 
earth  could  possess.     Every  independent  sov 
ereignty  may  regulate  its  commerce  according 
to  its  own  will,  and  so  as  to  protect  its  own 
capital,  encourage  its  own  products,  foster  its 
own  industry,  and  promote  its  own  manufac 
tures.  This  universal,  conservative,  and  neces 
gary  power  must,  beyond  doubt  or  question 
have  been  delegated  to  the  General   Govern 
ment  by  the  people  of  the  States,  who  severally 
possessed  it  until  they  surrendered  it  by  adopt 
ing  the  National  Constitution,  and  retained  to 
themselves   no  portion  of  it.     This,    too,    is 
Washingtonian   doctrine.     One    of  the    first 
acts  of  Congress  to  which  he  affixedhis  approv 
ing    signature    recognised,    on  its  face,  this 
principle  of  protection.    And   if  this  be  no 
constitutional,  then,  by  adopting  the  constitu 
tion  of  the  Union,  the  people  annihilated  th< 
power  to  protect  themselves  against  the  selfish 
policy  and  legislation  of  foreign  governments 
But  no  sane  man  can  read  the  constitution  dis 


lassionately  and  deny  that  this  vital  power 
till  exists  among  us  as  elsewhere,  and  that  it 
)elougs  to  our  General  Government,  to  which 
t  has  been  confided  by  the  people  as  a  great 
rust  for  their  own  common  welfare. 

The  powers  expressly  granted  by  the  con 
stitution    carry   with    them    all    appropriate 
iieans  for  effecting  their  ends — excepting  only 
50  far  as  the  constitution  prescribes  limitations 
>n    the    means  which  might    be  employed. 
When  not  so  limited   any  mean  is  constitu- 
iosal  which  relates  to  the  end  of  an  express 
newer,  and  will  tend  to  effectuate  it.     When 
he  people  granted  to  the  General  Government 
an  express  power,  they,  by  necessary  implica- 
ion,  granted  the  right  to  employ  any  means 
ror  fulfilling  the  end  of  that  power  which  the 
charter  itself  does  not  withhold,  and  which 
;hey  themselves  might  have  employed  for  the 
same   purpose    had  they  not   entrusted  the 
Dower  to  other  hands.  Every  mean  adapted  to 
he  end  of  an  express  power  is  therefore  con 
stitutional,  unless  it  be  prohibited  by  the  con 
stitution,  or  be  inconsistent  with  its  genius  or 
design.     Any    one  of  many    various    means 
nay  tend  to  the  effectuation    of   an    express 
Dower — which  of  them  shall  be  applied  is  a 
question    of    policy,  not    of    power.     Policy 
changes  with  the  times,   but,  as  long  as  the 
constitution  shall    continue  unaltered,    every 
3ower  which  ever  existed  under  it  must  con- 
inue  to  exist.     And,  of  the  various  means  re- 
ating  to  the  end  of  an  express  power,  no  one 
can   be  unconstitutional  merely  because    an 
other  may  be  considered  more  expedient — for 
then  power  would  depend  on  policy,  and  would 
)e  equally  fluctuating  and  always  questionable, 
n stead  of  being,  as  it  must  be,  fixed  a_id  uni- 
'orm — and  then,  too,  there  would  be  no  implied 
power  to  do  any  thing  except  that  which  is  most 
expedient;  and  moreover,  that  might  be  consti 
tutional  one  day  which  was  unconstitutional 
ihe  day  before,  or  might  be  so  the  day  after.  If 
the  charter  of  the  first  National  Bank  approv 
ed  by  Washington,  was  constitutional,  the  se 
cond  signed  by  Madison,  was  not  unconstitu 
tional — nor,  if  the  first  was  unconstitutional, 
could  the  last  be.  constitutional,  even  though 
the  times  might  have  made  it  more  useful  and 
expedient  than  the  first.     The  only  test  of  the 
validity  of  either  of  them  was  whether,  as  a 
fiscal  agent,  it  operated  as  a  means  for  effecting 
the  ends  of  the   express  powers  over  the  cur 
rency,  or  over  the  safe  keeping  and  transmis 
sion  of  the  public  monies.     If  it  did  so  ope 
rate,  it  was  constitutional,  even  though  some 
more  popular  means  to  the  same  ends  might 
have  been  selected — and  if  it  did  not  so  ope 
rate,  it  was  unconstitutional,  however  accept 
able  or  beneficial  it  may  have  been.    Whether 
it  was,  altogether,  the  best  mean,   might  have 
been  doubted — but  whether  it  was   a  mean 
adapted  to  any  of  the  ends  of  express  powers, 
none  could  consistently  deny;  and,  therefore, 
if  there  was  no  implied  power  to  organise  and 
establish  it,  the  same  process  of  construction 
which  would  lead  to  that  conclusion,  must  in 
evitably  result  in  the  denial  of  all  implied 
powers.     So   Washington  thought — and   BO 


356 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852. 


thought  also  the  most  of  those  who  made  the 
constitution  of  the  United  States. 

Whatever  the  General  Government  has  the 
right  to  do,  it  must  have  the  power  to  do;  and 
whatever  it  has  the  power  to  ordain,  it  must 
have  the  means  of  making  effectual.  And 
unless  it  have  the  ultimate  authority  to  decide 
on  its  own  power,  it  i.s  not  a  Government,  but 
a  mere  confederation.  Without  that  power, 
there  is  no  sovereign  power.  That  power  does 
exist  somewhere  in  this  Union.  It  cannot  be 


This  fundamental  truth  is  beautifully  sym 
bolised  by  the  motto  borne  aloft  by  the 
American  Eagle  on  the  star-spangled  banner 
of  the  Union — "J£  Pluribus  Unum" — one  gov 
ernment  out  of  many,  one  head  over  all.  And 
the  importance  of  maintaining  the  Union  and 
all  its  essential  rights  and  powers  is  forcibly 
expressed  by  the  national  motto  of  Kentucky's 


escutcheon — "United 


stand — divided   we 


fall." 

This  was  the  organic  principle  of  the  Cou- 
Convention  of 


long  to  the  separate  States  consistently  with  strtuUon  framed  by  the  1  ederal  Conventi 

the  ends  or  the  provisions   Of  the  constitu- 1 1787,  over  whicn  Washington  presided. 

tion.     In  a  contest  between  the  whole  and  any  1     No  rational  man  can,  consistently,  deny  that 

of  its  parts,  the  latter  must  yield  to  the  form- 1  the  Constitution  of  the  United  States  is  a  fun- 

er,  which  ceases  to  be  a  government  when-  j  damental  and  supreme  law  organizing  ^  all  the 

ever  it  surrenders  its  power  to  govern  in  the ' 

last  resort.    While,  therefore,  the  States  have 

reserved    all  local  sovereignty,    the  General 

Government  must  have  the  right  to  decide  as 

to  its  own  powers  in  every  collision  between 


people  who  are  parties  to  it  into  one  independ 
ent  nation,  possessing  but  one  national  mind, 
and  vested  with  paramount  authority  over  all 
concerns  involving  the  integrity  of  the  Union 

^  established  by  it,  or  in  which  the   citizens  of 

it  and  anylstate  of  the  Union.     Apprehend-  j  more  States  than  one  may  have  a  common  in- 
ing  collisions  between  the  general  and  local  j  tercst.     Nor   can   there   be    a  rational  doubt 


governments  as  to  their  respective  powers,  and 
wisely  foreseeing  that  that  of  the  Union  should 
in  all  such  cases,  control,  the  people  virtually 
so  declared,  and  carefully  provided  a  tribunal 
— representing  all  and  responsible  to  all  for 
final  and  peaceful  decision,  and  explicitly  gave 
to  that  august  national  forum  appellate  ju 
risdiction  over  every  judicial  controversy  in 
in  which  the  Federal  Constitution  shall  ever 
be  involved.  The  great  object  of  that  wise 
precaution  was  to  uphold  the  Union,  maintain 
the  uniformity  and  supremacy  of  its  charter, 
and  rebuke  and  prevent  nullification  by  State 
Courts,  State  Legislatures,  or  State  Conven 
tions. 


that  the  Government  constituted  by  it,  like 
every  other  independent  sovereignty,  has 
the  political  power  to  uphold  and  enforce  it 
according  to  the  national  will  expressed  by  its 
organs  as  constituted  for  that  purpose. 

But  this,  as  well  as  any  other  Government, 
may  sometimes  err  and  go  beyond  the  sphere 
prescribed  by  its  charter — and  then  its  uncon 
stitutional  acts  are  void.  But  the  guaranties 
against  any  such  aberration  are  even  stronger 
and  more  assuring  than  those  of  any  State  in 
the  Union  against  usurpation  by  any  of  its 
local  authorities;  and  the  constitutional  reme 


dies  for  relief  are  precisely  the  same  as  those 
I  provided  as  the  only  legal  ones  in  every  well 
The  charter  of  our  Union  also  proscribes,  as  j  organized  Government. 

unconstitutional  and  revolutionary,  the  new- 1     Whenever  the  constitutionality  of  a  legisla- 
born  heresy  of  "secession."     The  Union  can  tive  act  of  a  State  is  questioned,  every  citi- 


be  constitutionally  dissolved,  altered,  or 
maimed  only  in  the  mode  prescribed  in  its 
charter.  The  citizens  of  the  States,  being  all 
parties  to  it,  and  having  declared  in  it  that  it 
shall  be  the  supreme  law  for  each  and  all — 
every  citizen  owes  to  it,  and  to  all  its  constitu 
ted  authorities,  a  paramount  allegiance — and 
no  one  citizen,  nor  any  association  of  citizens 
of  one  or  of  more  States,  can  remain  within 
the  chartered  limits  of  the  Union  without 
being  subject,  at  all  times  and  under  all  circum 
stances,  to  its  supreme  authority  as  long  as 
the  charter  shall  remain  unchanged.  If  nulli 
fication  or  secession  shall  ever  succeed,  the 
General  Government  will,  so  far,  if  not  alto 
gether,  be  upset — an  act  of  revolution  destruct 
ive  of  the  vitality  of  the  Union,  which  is  not 
merely  a  mechanical  combination  of  independ 
ent  parts,  but  is  rather  a  chemical  and  vital 
cohesion  of  homogeneous  elements  of  one  en 
tire  political  body,  with  different  organs  and 
distinct  members,  all  co-operating  for  the 
preservation  of  the  whole — which  is  equally 
necessary  for  the  health  of  each  constituent 
part. 


zen  has  a  political  right  to  oppose  it  on  hi,* 
civil  responsibilities  to  the  official  judgment  of 
the  constitutional  majority  expressed  as  pro 
vided  by  all  the  people  of  the  State  in  their 
organic  law;  but,  whenever  that  judgment 
shall  have  been  authoritatively  pronounced, 
resistance  is  no  longer  legal,  but  maybe  trea 
son,  and,  if  successful,  would  be  revolutionary. 
This  will  not  be  denied  by  any  American 
Statesman.  Why  is  it  not  equally  true  in 
reference  to  the  Government  of  the  Union? 
It  must  be,  or  there  is  no  such  Government; 
for  it  is  an  axiomatic  truth  that  no  nation  can 
be  sovereign  or  exercise  the  powers  of  Gov 
ernment  unless  it  have  the  political  right  to 
decide  ultimately  on  its  own  sovereignty. 
That  right  is  given  by  the  people  to  the  Gov 
ernment  they  established  by  the  Constitution 
of  the  United  States — and  without  it  there 
could  be  no  practical  Government  of  the 
Union — and  the  national  Constitution  would 
possess  no  inherent  vitality  or  power  as  a  su 
preme  law,  for  all  and  over  all. 

That  the  constitution  is  not  a  league,  but  a 
LAW — that  it  established  a  Government  and 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852. 


357 


not  a  confederation — and  that  the  Government 
it  instituted  is  supreme  within  its  sphere — 
was  all  conceded  by  the  oracle  of  a  modern 
party  called  nullifiers.  But  this  concession 
Avas,  itself,  nullified  or  neutralized  by  the  sui 
cidal  assumption  that  each  State  Government 
is,  as  to  the  General  Government,  a  "co-ordi- 
nate"  sovereign;  and  has,  therefore,  a  constitu 
tional  right  to  maintain,  by  force,  its  own  de 
cision  against  that  of  the  United  States  on 
the  Constitutionality  of  every  act  of  the  Gov 
ernment  of  all  the  people  of  all  the  States. 
This  assumption  is  a  virtual  denial  of  the 
supremacy  of  the  Constitution  of  the  United 
States — for  surely  that  cannot  be  a  supreme 
law  which  those,  who  made  it  and  for  whom 
it  was  made,  have  not  the  exclusive  right, 
finally,  to  interpret  and  enforce.  And,  conse 
quently?  if  the  Constitution  of  the  United 
States  be  law,  and  if  the  Union  can  be  main 
tained  by  a  common  Government,  the  people 
of  that  Union,  as  the  constituents  of  that  Gov 
ernment,  must  necessarily  have  the  right  to 
uphold  and  enforce  their  own  political  author 
ity,  according  to  their  own  organic  judgment, 
against  the  conflicting  opinion  of  any  minor 
portion  of  them — whoever  and  wherever  they 
may  be. 

When  it  is  admitted,  as  it  is  and  nmst  be, 
that  the  Constitution  established  a  Government 
•which  has  a  right,  within  its  prescribed  sphere, 
to  operate  supremely — that  is,  above  all  other 
power,  popular  or  political — over  every  citi 
zen  of  every  State — it  is  a  palpaple  sophism 
to  say  that  any  citizen  or  a  majority  of  the 
citizens  of  a  State  have,  nevertheless,  a  consti 
tutional  right,  in  the  last  resort,  to  decide  that 
the  General  Government  had  transcended  its 
sphere — and  thus  to  overrule  an  opposing  de 
cision  by  that  Government  itself,  or  by  all  the 
other  citizens  of  the  United  States.  Such  a 
Constitution  cannot  be  a  supreme  law — and 
would  not  establish  a  Government  over  all 
the  people  of  the  Union — but  would,  in  effect, 
be  only  a  league  between  sovereign  States. 
It  would  be  absurd  to  say  that  the  Constitu 
tion  is  supreme  over  all  the  people  of  all  the 
States,  and  that  yet  a  majority  of  the  people 
of  any  one  State,  even  the  smallest,  have  a 
right  to  exercise,  whenever  they  may  choose  to 
do  so,  supremacy  over  that  supreme  law.  But 
this  is  the  ludicrous  position  assumed  by  those 
who  contend  that  each  State  possesses  sover 
eignty  co-ordinate  with  that  of  all  the  States 
united  under  one  Supreme  Government, 
adopted  by  the  citizens  of  all  for  the  protec 
tion  and  control  of  every  citizen  of  each  and 
all.  If  the  sovereignty  of  one  State  in  the 
Union,  and  that  of  the  Government  of  all  the 
people  of  the  Union  are  co-equal,  then  the 
conclusion  is  plain  and  inevitable  that  no  pro 
vision  in  the  Constitution  of  the  United  States, 
nor  any  one  law  enacted  by  Congress,  can  be 
"the  Supreme  Law  of  the  Land" — any  pro 
vision  in  any  State  Constitution  or  State  Law 
to  the  contrary  notwithstanding. 


The  stumbling  block  of  the  party  who 
claim  co-ordinate  supremacy  for  the  individual 
States  is  the  assumption  that  the  General 
Government  has,  in  a  given  case,  gone  beyond 
its  sphere  and  usurped  State  power. 

Admit  that  it  has  done  so,  and  that,  there 
fore,  its  act  is  void.  Still  it  is  not  a  Govern 
ment,  and  its  Constitution  cannot  be  the  Su 
preme  Law  if,  instead  of  itself  or  its  entire 
constituency,  the  people  of  any  one  of  the 
States  have  the  right  to  decide  for  themselves, 
finally  and  authoritatively,  that  the  act  is  un 
constitutional.  But  suppose  that  the  act  is, 
in  fact,  Constitutional — then  it  is  entitled  to 
be  the  Supreme  Law  in  every  State  in  the 
Union.  Yet  it  could  not  so  operate,  if  any 
one  of  the  States  should,  erroneously,  decide 
otherwise  and  thereby  nullify  the  constitutional 
act — even  though  that  decision  might  conflict 
with  that  of  the  whole  Union  besides.  The 
Constitution  has  not  left  the  Union  in  any  such 
helpless  or  hopeless  condition.  It  has  not 
only  proclaimed  its  own  supremacy,  but  has 
provided  means  for  upholding  it  against  all 
local  opposition.  And  these  alone  make,  or 
could  make  it  the  Supreme  Law.  As  such, 
Washington  signed  it — and  as  such  his  admin 
istration  made  it  effectual  and  illustrious. 
And  all  the  people  should  remember  this 
whenever  they  assemble  to*  commemorate  the 
birth  of  the  greatest  of  the  founders  of  their 
National  Temple  of  Civil  and  Religious  Lib 
erty. 

These  essential  principles  of  the  American 
ttlmperium  in  imperioj*  in  the  normal  state  of 
our  complex  system,  are  conclusively  settled 
by  authority,  consecrated  by  our  history,  and 
illustrated  by  the  acts  and  the  counsels  of  him 
whose  memovy  we  this  day  celebrate. 

Time  will  not  allow  us,  on  the  present  oc 
casion,  to  indulge  in  further  contemplations 
on  this  copious  and  interesting  theme.  We 
have  only  looked  at  the  vital  principle  of  our 
political  organization. 

Such,  then,  in  outline,  is  the  political  fabric 
reared  under  the  auspices  of  Washington. — 
Preserve  it  as  he  left  it,  and  all  will  be  safe — 
safe  to  us,  safe  to  our  posterity,  and  as 
hopeful,  as  safe  to  all  mankind  for  ages  to 
come.  How  to  preserve  and  transmit  it  unim 
paired,  he  has  taught  us  in  his  patriarchal  ad 
dress  to  his  countrymen.  Without  this  last 
and  crowning  act,  his  work  on  earth  would 
have  been  unfinished.  But,  true  to  his  trust, 
aware  of  the  proneness  of  all  popular  govern 
ment  to  degeneracy  and  ruin,  and  anxious  that 
ours,  the  best  ever  established,  should  have  a 
fair  trial,  he  fulfilled  his  mission  by  bequeath 
ing  to  his  country  his  oracular  counsels — and 
then,  committing  all  that  he  had  done  to  the 
virtue  of  the  people,  he  left  it  and  them  to 
live  or  perish  under  the  protection  of  Provi 
dence,  the  guidance  of  his  own  name,  and  the 
light  of  his  principles  and  example.  That  pa 
ternal  legacy  is,  to  American  politics,  what 
^the  Decalogue  is  to  universal  morals.  It  is  as 


358 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852. 


true  as  Revelation,  though  it  may  lack  its  in 
spiration.  May  it  ever  be  familiar  to  our 
thoughts  and  hallowed  in  our  affections.  It 
declares  the  national  origin  and  operation  of 
the  General  Government,  the  supremacy  of  its 
authority,  and  the  coerciveness  of  its  power — 
urges  the  countless  value  of  the  Union  it  was 
intended  to  cement — warns  against  the  wick 
edness  of  prescriptive  party  spirit — the  danger 
of  local  prejudices,  and  the  suicidal  folly  of 
sectionalism — denounces,  as  treason,  every 
factious  effort  to  dissolve  the  Union,  or  resist, 
by  force,  the  will  of  the  nation  endorsed  by 
the  authority  of  the  tribunal  appointed  by  all 
as  the  final  arbiter  of  the  constitutional  rights 
of  each  and  all — recommends  the  faithful  ob 
servance  of  neutrality  in  the  local  concerns  of 
other  nations — the  cultivation  of  peace  and 
friendly  intercourse  with  all  as  equals,  the 
protection  of  our  own  industry,  the  physical 
improvement  of  our  own  country,  and  the 
moral  improvement  of  our  own  people — incul 
cates  the  indispensable  necessity  of  the  prev 
alence  of  the  Christian  principle  and  spirit — of 
tolerance  for  difference  of  opinion  or  of  faith 
in  politics  and  religion — of  a  pure  and  mag 
nanimous  patriotism,  and  an  habitual  venera 
tion  for  the  fundamenlal  law  as  the  palladium 
of  our  Union  and  liberty — and  finally  rebukes 
a  spirit  of  conquest  or  of  propagandism  as  in 
consistent  with  the  genius  and  proper  destiny 
of  a  model  republic — which  should  never,  like 
Mahomet,  propagate  its  principles  by  the  sword, 
but  should  rather,  like  the  great  prototype  of 
Christian  Republicans,  commend  them  to  man 
kind  by  peacefully  illustrating  their  wisdom 
and  benificence  at  home. 

The  Washington  doctrines  of  the  Constitu 
tion  and  precepts  of  the  Valedictory  Address 
constitute  the  true  orthodox  creed  of  Ameri 
can  politics.  Every  citizen,  who  approves  and 
will  uphold  them,  is  of  the  only  party  which 
can  ever  stand  among  us  on  principles  conser 
vative  and  immutable — and  that  is — the  Wash 
ington  party. 

^  Personal  parties — factious  parties — all  poli 
tical  parties — organized  for  the  aggrandize 
ment  of  men,  or  animated  by  any  other  desire 
than  that  of  promoting  the  welfare  and  secur 
ing  the  liberty  and  peaceful  glory  of  our 
country,  will  be  spurious  and  must  be  ephe 
meral.  And  if  it  be  the  destiny  of  America 
to  be  a  permanent  theatre  of  human  amelio 
ration,  or  the  fate  of  her  free  institutions  long 
to  survive  and  prosper,  the  statesmen  of  the 
Washington  school  will  overcome  and  keep 
down  all  selfish  associations  and  unprincipled 
politicians 

If  the  gloomy  day  shall  come  when,  that 
party  shall  go  down,  and  its  principles  shall 
be  discarded  and  neglected,  then  let  the  de 
generate  race  of  recreant  paricides  tear  from 
our  national  calender  the  name  of  Washing 
ton  and  desecrate  his  birth-day  to  the  servile 
worship  of  some  meretricious  idol,  or  consign 
its  glorious  memory  to  oblivion.  But,  if  man 
deserve  democratic  freedom  and  be  capable  of 


upholding  it,  that  disastrous  day  will  never 
come — or,  like  a  pestilential  cloud,  will  soon 
pass  away,  and,  by  its  transient  gloom  and 
desolation,  will  prove,  for  ages  to  follow,  the 
wanton  folly  of  renouncing  the  principles  or 
disregarding  the  precepts  of  him  who  was 
"  first  in  war,  first  in  peace,  and  first  in  the 
hearts  of^his  countrymen.-"  As  long  as  his  con 
stitutional  principles  prevail,  and  his  patern 
al  precepts  are  observed,  occasional  eruptions 
on  the  skin  of  the  robust  body  of  our  American 
Liberty  will  be  as  harmless  to  our  institutions 
as  the  volcanic  belchings  of  smoke  from  ^Etna 
or  Vesuvius  are  to  the  stability  of  the  earth. 
The  former,  like  the  latter,  may  indeed  be 
useful  in  throwing  out  and  wasting  fiery  ele 
ments  which,  without  these  safety  valves, 
might  produce  ultimate  convulsion. 

Only  let  Washington's  principles  and  pre 
cepts  be  properly  regarded,  and  then  it  will 
be  as  impossible  for  attempts  at  nullification 
and  secession,  or  any  other  factious  and  un 
constitutional  movement  to  dissolve  this  Union, 
as  it  would  be  for  puny  man  to  disturb  the 
harmony  of  the  solar  system. 

In  our  brief  history  we  have  had  examples 
of  local  agitations  threatening  the  peace  and 
integrity  of  the  Union  The  "whiskey  insurrec 
tion"  in  1794  defied  and  strove  to  subvert  the 
authority  of  the  General  Government  to  levy 
excise  duties  for  sustaining  its  own  credit. 
But  Washington  was  at  the  helm,  and  by 
firmly  displaying  the  physical  power  of  the 
constitution,  he  rescued  it  from  degradation, 
and  put  down  the  treason. 

During  the  war  with  England,  in  December, 
1814,  a  convention  of  delegates  from  some  of 
the  New  England  States  assembled  at  Hart 
ford,  Conn.,  and  published  a  manifesto,  pro 
nouncing  unconstitutional  and  unjust,  some 
of  the  acts  of  the  General  Government,  and 
asserting  the  right  of  the  States,  in  a  case  "of 
a  deliberate,  dangerous  and  palpable  infrac 
tion  of  the  constitution  affecting  the  sovereign 
ty  of  the  States,  and  the  liberties  of  the  peo 
ple,  beyond  the  reach  of  the  judicial  tribunals 
or  too  pressing  to  admit  of  the  delay  incident 
to  their  forms,  to  be  their  own  judges  and  ex 
ecute  their  own  decisions." — Reprehensible 
as  that  organized  and  apparently  factious 
movement  was,  it  did  not  go  to  the  length  of 
modern  nullification.  It  virtually  acknowl 
edged  the  duty  of  submission  to  the  judicial 
authority  of  the  United  States  as  to  all  con 
stitutional  questions,  over  which  the  National 
constitution  gives  to  the  Supreme  Court  of  the 
Union  final  jurisdiction.  Even  that  proceed 
ing,  however,  subjected  to  odium  and  political 
ostracism,  the  prominent  actors  in  that  memor 
able  convention  ;  and  no  portion  of  the  people 
were  more  generally  and  more  perseveringly 
prescriptive  of  them  than  those  of  the  South. 

Yet  m  November,  1832,  South  Carolina— 
the  land  of  the  Pinkneys,  the  Rutledges,  and 
the  Marions  of  the  Revolution— went  to  the 
perilous  extremity,  in  a  time  of  profound  peace 
and  general  prosperity,  of  denouncing,  by  a 
State  ordinance,  the  Tariff  for  protection,  as 
unconstitutional  and  oppressive,  and  of  de 


ADDRESS  ON  THE  S2nd  FEBRUARY  1859. 


359 


claring  that  she  had  a  right  to  resist,  and 
would  resist  it  by  force.  Andrew  Jackson, 
then  in  the  seat  of  Washington,  issued  an  ad 
mirable  proclamation  denouncing  "nullifica 
tion"  and  "secession"  as  unconstitutional  and 
revolutionary,  and  warning  the  recreant  State 
that,  if  necessary  for  maintaining  the  Union 
and  the  supremacy  of  its  laws,  he  would  re 
sort  to  the  national  sword,  and,  at  all  hazards, 
quell  the  seditious  rebellion.  That  bold  step 
led  to  capitulation  and  virtual  submission — 
the  Government  adhering  to  the  principle  of 
protection,  and  South  Carolina  retreating  from 
her  rash  and  indefensible  position. 

Unchastened  by  that  eventful  precedent,  a 
a  large  portion  of  the  politicians  of  that  restless 
State,  have  been,  more  recently,  agitating  the 
Union  on  the  subject  of  domestic  slavery — and 
malcontents   in  the  South   have  been  lately 
concerting  measures  ostensibly  for  secession 
from  the  Union,  which  they  recklessly  assert 
to  be  a  constitutional  right.      Many  of  these 
men  think  that  it  is  the  duty  of  Congress  to 
force  slavery  into  certain  Territories  whether 
the  freemen  thereof  will  it  or  not.  While  their 
antipodes — fanatical    abolitionists    and  free- 
soilers — have  been  urging  Congress  to  forbid 
slavery  in  those  territories,  even  though  the 
citizens,  who   ought  to  decide  all  such  ques 
tions  for  themselves,  may  desire  its  introduc 
tion  among  them.     Thus  we   have  had  the 
humiliating  spectacle  of  secession  denounced 
South  unless  Congress  will  do  a  violent  thing, 
and  of  secession  apprehended  North  unless 
Congress  will  do  an  opposite  thing  equally 
violent  and  inconsistent  with  American  Inde 
pendence,  the  spirit  of  the  constitution, and  the 
compromises  which  brought  it  into  being  and 
have  hitherto  preserved  its  healthful  existence. 
How  much  more  reasonable,  prudent,  and 
just,  is  the  intermediate  doctrine  that  every 
separate  community  of  freemen  should  be  per 
mitted  to  regulate  their  own  domestic  relations? 
This,  until  lately,  was  the  favorite  doctrine  oJ 
the  whole  South.     It  ought  also  to  be  the  doc 
trine  of  the  North.     It  concedes  to  the  citizens 
of  territories    or.ly  what  those  of  every  State 
North  as  well  as  South,  may  lawfully  do  for 
themselves.     The  translation  of  slaves  from  a 
State  to  a  territory  will  not,  any  more  than 
their  migration  from  State  to  State,   increase 
the  aggregate  number  otherwise  than  by  im 
proving  their  condition,  which  true  philan 
thropy  would  desire;  preventing  their  disper 
sion  only  aggravates  the  evils  of  slavery  anc 
increases  the  wretchedness  of  slaves,  which 
benevolence   arid  policy   both   forbid.     Anc 
surely  the  voluntary  admission  or  interdiction 
of  slavery  by  a  territory  would  not  be  a  na 
tional  act  for  which  Congress  or   any  State 
could    feel    responsible.     The  only   pruden 
mode  of  treating  the  delicate  subject  of  slavery 
in  the  United  States  is  for  Congress  and  the 
people  of  the  States  where  it  does  not  exist  tc 
let  it  alone.     It  must  run  its  own  course  to  its 
natural  destiny.     Foreign  intermeddling  with 
it  will  only  prolong  its  existence,  aggravate 
its  evils,    and  disturb   the  harmony  of  th 
Union. 


The  late  Compromise  act  of  Congress  ad- 
usts  this  distracting  warfare  of  sections  on 
he  proper  basis  of  non-interference  with  the 
domestic  institutions  of  States  or  Territories, 
and  of  a  prompt  and  faithful  observance  of  the 
constitutional  injunction  to  surrender  fugitive 
slaves  just  as  fugitive  freemen  are  required  to 
36  surrendered. 

If  that  healing  act  shall  fail  to  restore  har 
mony,  and  if  abolitionism,  secession,  ornulli- 
ication  should  again  disturb  the  peace,  pru 
dence  might  recommend  a  resort,  in  a  proper 
case,  to  the  expedient  of  Washington,  for  test 
ing  the  strength  of  the  constitution  and  trying 
whether  Union  is  stronger  than  faction.  Should, 
this  experiment  prove  ineffectual,  the  result 
would  show  that  the  work  of  our  Fathers  is  a 
failure.  But  should  it.  as  we  believe  it  would, 
succeed,  the  practical  illustration  of  the 
power  of  the  constitution  to  preserve  itself 
would  be  useful  for  ages. 

In  the  exuberance  of  our  national  blessings 
let  us  not  forget  that  we  owe  not  only  grati 
tude  to  Providence  for  bestowing  and  to  our 
fathers  for  transmitting  the  sources  of  them, 
but  the  duty  also  of  preserving  and  handing 
them  down  to  our  children  improved  and  aug 
mented,-  and  extending  them,  by  our  sympa 
thy  and  the  light  of  our  example,  to  all  peo 
ple  who  may  be  prepared  to  obtain  of  and  to 
enjoy  them.  But  it  is  not  fit  that  a  Republic 
should  cherish  or  encourage  a  crusading  spirit. 
Let  us  never  presume  to  judge  between  parties 
in  any  foreign  country,  or  to  make  the  cause 
of  either  our  cause.  Other  nations  have  as 
much  right  to  decide  between  our  Government 
and  any  opposing  portion  of  our  people — 
black  or  white,  bond  or  free — and  to  espouse 
the  cause  of  the  weaker  or  insurgent  party. 
Though  the  balance  of  power  and  hereditary 
absolutism  are  the  dynastic  principles  of  Eu 
ropean  policy,  and  non-intervention  and  the 
right  of  every  nation  to  regulate  its  own  affairs 
are  leading  'American  doctrines,  yet,  even  if 
these  cisatlantic  principles  of  international 
law  should  be  violated  by  Kings  in  the  old 
world,  it  would  be  neither  our  duty  nor  our  in 
terest  to  oppose,  by  force,  improper  interven 
tion  on  another  continent.  Nor  would  the 
cause  of  liberty  be  promoted  by  any  such 
course.  When  the  people  of  Europe  shall 
be  prepared  for  popular  institutions  autocrat 
ic  interference  will  be  powerless,  and  the  dy 
nasties  will  all  fall:  before  that  propitious 
season,  revolution,  as  in  France,  might  be 
premature  and  barren  of  permanent  good. 
Let  us  hold  up  a  good  example  as  a  beacon- 
light;  and,  if  we  please,  we  might  signify  to 
crowned  heads  that  interference  by  any  of 
them  in  the  domestic  affairs  of  other  people 
will  be  disapproved  by  our  Government,  and 
that  its  disapprobation  will  be  manifested  by 
all  peaceful  measures  that  may  be  prudent  and 
befitting.'  But  let  us  be  careful  to  go  no  fur 
ther  unless  in  self-defence  or  for  legitimate  re 
taliation  for  wrongs  done  to  us. 

Kossuth  may  be  an  unalloyed  patriot.  We 
hope  he  is.  He  has,  by  some  of  our  fellow 
citizens,  been  styled  "  the  great  advocate  and 


360 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852 


defender  of  Liberal  principles."  This  we  |  tegrity  and  supremacy  of  the  Union  he  lived 
could  not  admit,  however  well  we  might  think  to  consolidate.  Though  you  may  not  expect, 
of  his  talents  or  his  aims.  "What  his  ultimate  to  be  Washingtons,  each  of  you  should  strive 
principles  are  or  how  conservative,  time  and  j  to  be,  and  might  hope  to  be,  like  him,  an  hon 
chance  alone  can  decide.  Nor  do  we  know  lest  man,  and  a  good  citizen.  You  may  adopt 
what  he  or  his  country  would  do  or  be  if  lib-  j  his  golden  motto,  "that  above  ourselves,  our 
crated  from  a  foreign  yoke.  We  would  be  glad  country  should  be  dear."  And  if  it  shall  be 
to  see  all  men,  everywhere,  as  free  and  as  ties-  your  fortune  to  act  important  parts  in  coming 
ned  as  ourselves.  But  we  ought  to  know  that  [scenes,  remember  that  popularity  is  not  re- 


few  are  qualified  for  the  achievement  or  enjoy 
rnent  of  those  great  and  peculiar  privileges  of 
popular  liberty  and  equality.  Government  is 
relative — and  that  is  the  best  for  any  people 
which  is  the  most  suitable  to  their  grade  in  the 
scale  of  intelligence  and  virtue.  And  we  know 
not  that  Hungary  is  better  prepared  for  dem- 


nown,  and  that  notoriety  is  not  fame.  Impress 
en  your  hearts  the  universal  truth  that  the  es 
teem  of  wise  and  honorable  men  is  the  con 
stant  shadow  of  sound  principles  and  honest 
And  never  forget  that  the  magnet  al- 
pointing  to  the  pole  star  of  duty  is 


acts, 
ways 
that — 


ocratic  self-government,  than  t<  ranee,  Ireland,    „  One  self.apprOving  hour  far  outweighs 
England,  Scotland,  Poland,  Germany  or  Italy.   ™^    ••  <•  °* 

But  we  may  confidently  assert  that  a  people, 
properly  prepared  for  free  institutions,  will,  in 
the  congenial  season,  have  them  either  in  form 
or  in  substance.  Let  all  who  feel  it,  prudent 
ly  manifest  sympathy  for  the  Maeryarrace,  and 
let  our  social  hospitality  be  extended  to  their  crumbled  into  dust,  and  reposes  in  solemn  si- 


Whole    years    of    stupid    starers    and    loud 
huzzas." 

This     conscientious     sentiment     was    the 
mentor  of  Washington. 

All  that  was  mortal  of  that  rare  man  has 


exiled  leader — our  Government  may,  if  it 
please,  offer  him  an  asylum  under  the  flag  of 
our  Union;  but  let  us  not  offer  assistance  to 
their  cause  under  the  bloody  banne^of  inter 
meddling  war.  The  best  we  could  now  do  for 
him  and  his  doomed  country  would  be  to  con 
vince  them  by  our  own  conduct  and  condition 
at  home,  that  peace,  liberty,  justice,  and  pro 
gress  are  the  fruits  of  such  institutions  as  ours 
administered  on  the  platform  of  Washington's 
principles,  precepts,  and  example. 

Fellow-countrymen — are  those  principles 
ours  ?  will  we  observe  those  precepts  ?  do  we 
admire  that  example  ? 

Ladies — though  you  have  no  political, 
you  exercise  much  moral  power.  If  you  do 
not  utter,  you  help  to  form  public  opinion. 
As  citizens  you  have,  in  your  sphere,  rights 
to  preserve  and  duties  to  perform:  and  mothers 
in  a  republic  arc  missionaries  of  erder  and 
truth.  The  characters  of  their  children, 
moulded  under  their  plastic  tutelage,  will 
make  them  either  a  blessing  or  a  curse  to  their 
country. 

Then,  mothers  of  America,  hold  up  before 
your  nurseling  sons  the  life  of  Washington  : 
teach  them  his  principles — impress  on  their 
infant  hearts  the  excellence  of  his  parting  ad 
dress  to  his  countrymen — and  point  them  to 
the  light  of  his  beautiful  example.  This  may 
be  the  best  you  can  do  for  them,  next  to  teach 
ing  them  the  word  of  God. 

Young  gentjemen  of  Transylvania  Law  De 
partment — at  whose  request  this  [address  is 
delivered — having  come  here  to  study  juris 
prudence,  it  is  peculiarly  your  duty  to  become 
thoroughly  imbued  with  the  principles  of  youi 
country's  organic  institutions.  Do  you  now 
understand  them  as  Washington  did  V — Do 
consider  the  National  Constitution  as  he  did 
when  he  signed  it  as  President  of  the  Federal 
Convention,  and  as  it  was  illustrated  by  him 
while  lie  was  President  of  the  United  States  ? 
If  you  do,  you  are  prepared  with  the  best 
armour  for  defending,  to  the  uttermost,  the  in- 


lence  on  the  banks  of  the  majestic  Potomac 
almost  in  sight  of  the  Metropolitan  city  of  his 
own  name. 

But  if,  as  the  wisest  men  believe,  his  spirit 
is  still  conscious  of  the  affairs  of  earth,  he  feels 
anxious  concern  for  the  welfare  of  the  country 
of  his  cradle  and  his  grave,  and  for  the  suc 
cess  of  the  free  institutions  he  helped  to  found. 
It  would  not  therefore,  be  either  impious  or 
irrational  to  imagine  that,  this  day,  he  looks 
down  with  emotion  on  the  millions  of  freemen 
whose  grateful  hearts  are  pouring  out  offer 
ings  to  his  memory — and  would  address  them 
in  something  like  the  following  manner  : 

"Children  of  tbe  Pilgrim  Fathers,  and  cit 
izens  of  the  promised  land — Listen,  once 
more,  to  the  counsels  of  a  departed  friend  who 
devoted  his  earthly  life  to  the  cause  of  civil 
and  religious  liberty,  and  whose  memory, 
therefore,  you  this  day  honor.  It  was  his  for 
tune  to  be  born  in  America,  when  u  compara 
tive  wilderness  under  the  dominion  of  Eng 
land.  He  lived  to  see  his  countrymen  free 
and  independent,  and  united  in  a  political 
brotherhood,  as  one  and  the  same  people. 
That  independence  he  helped  to  achieve — that 
Union  he  helped  to  establish.  They  are  in 
dissoluble  companions — neither  can  peacefully 
or  prosperously  exist  without  the  other.  This 
historic  truth  is  inscribed  on  the  tombs  of  all 
buried  republics  and  confederations  of  sover 
eigns.  To  maintain  Liberty  and  Union,  it 
was  indispensable  to  establish  a  National  Gov 
ernment,  vested  by  the  people  of  the  United 
States  with  exclusive  power  over  all  common 
concerns  abroad,  and  with  supreme  authority 
over  all  such  interests  at  home  as  are  not  con 
fined  to  the  people  of  a  State.  Convinced  by 
fearful  experience  of  the  necessity  of  such  a 
Government,  the  people  of  the  States,  then 
federal,  voluntarily  surrendered  the  requisite 
portion*  of  their  independent  sovereignty,  and 
transferred  all  that  mass  of  poAver  to  a  com 
prehensive  National  Government,  constructed 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852.  361 


by  the  Constitution  of  the  United  States,  of  as  being  consistent  with  the  spirit,  the  object, 
which  they  alone  could  have  authoritatively  j  the  provisions,  or  the  supremacy  of  your  great 
established.  With  less  power  than  what  was  ;  National  theater. 

thus  granted,  and  without  inherent  and  j  Like  the  Mosaic  Economy — according  to 
paramount  authority  to  uphold  and  en-  j  which,  each  of  the  Twelve  Tribes  exercised 
force  it,  the  harmony,  justice,  or  even  exis-  j  local  Government  under  the  supervision  and 
tence  of  the  Union  could  not  have  been  long :  ultimate  control,  as  to  all  national  interests,  of 
maintained.  No  power  was  delegated  to  the  ;  the  National  Government,  just  as  families,  and 
General  Government  except  what  the  guardian  ;  hundreds  and  thousands,  exercised  subordinate 
of  the  Union  should  possess  for  preserving '  sovereignty  in  each  tribe — each  State  in  your 
peace  and  promoting  "the  common  welfare"  i  Union  possesses  a  local  sovereignty  for  regu- 
of  the  people  and  of  the  States.  To  reclaim  I  lating  its  own  separate  interests,  and  each 
any  essential  portion  of  that  national  power, '  county  and  incorporated  city  of  every  State 
or  to  object  to  the  full  exercise  of  it,  might  |  exercises,  subordinately,  a  more  circumscribed 
frustrate  the  desirable  ends  for  which  it  was  !  sovereignty — the  Government  of  the  Union 
entrusted  to  the  constituted  organs  of  all  the  j  being  the  ultimate  sovereign,  as  to  every  na- 
citizens  of  the  United  States.  And  to  deny  j  tional  interest  or  concern.  If  in  every  conflict 
the  ultimate  right  of  the  representatives  of  i  between  the  Government  of  an  integral  por- 
the  whole  Union  to  decide  authoritatively  on  j  tion  of  the  Union,  and  the  Government  of 
the  delegated  powers  of  the  whole,  would  in-  (the  whole  Union,  as  to  their  respective  spheres 
volve  the  absurdity  of  claiming  its  inferiority  j  of  constitutional  authority — the  former  should 
and  subjection  to  each  of  its  integral  parts,  the  (have  concurrent  and  co-equal  sovereign  power, 
practical  subordination  of  which  was  the  pur-  any  one  State  might  stop  the  wheels  of  the 
pose  of  the  Constitution,  and  is  required  by  its  |  General  Government,  and  annul  or  paralyse 
declared  and  necessary  supremacy.  Without  j  any  of  its  delegated  powers.  This  we  never 
such  right  the  General  Government  would  not  j  intended — and  we  all  thought  we  had  made  a 
be  sovereign — for  authority  to  decide  on  its  j  Constitution  and  established  a  Government 
powers  is  the  distinguishing  element  of  all  j  which  would  forever  prevent  a  State  from, 
true  and  legitimate  sovereignty.  The  deposi-  again  overruling  the  United  States  in  any  of 
tory  of  the  national  powers  expressly  granted  |  their  acts  held  to  be  Constitutional  by  the 
has  the  implied,  as  well  as  the  declared,  right  I  Authorities  provided  by  their  Constitution  for 
to  employ  the  requisite  means  for  fulfilling  the  \  that  purpose.  This  is  the  vital  principle  of 
great  trust.  And  the  charter  should  be  so  con- [the  Federal  Constitution — Avithout  it  your 
strued,  and  its  powers  so  exercised  as  to  fulfil,  Union  would  have  no  power  to  preserve  its 
as  far  as  may  be,  the  beneficent  objects  of  the  i  own  existence — with  it,  that  Union — the  wisest, 
grant.  Submission  to  tho  acts  and  decisions  best  cemented,  and  most  hopeful  the  world 


of  the  General  Government,  or  relief  from 
them  only  in  a  mode  prescribed  by  the  com 
pact  of  the  Union,  is  the  civic  obligation  of 
every  citizen,  and  of  all  associations  of  citi 
zens.  This  is  the  object  of  all  Constitutional 
Government;  and  none  could  long  exist  under  any 
other  theory  or  practice. 

It  was  my  fortune  to  be  an  actor  in  fra 
ming  and  adopting  the  Federal  Constitution — 
called  a  Constitution,  because  it  was  made 


ever  saw — may  last  as  long  as  the  memory  of 
the  Patriots  who  achieved  your  Independence, 
and  of  the  Statesmen  who,  by  adopting  its 
magna  charta,  did  their  best  to  establish  your  lib 
erties  on  the  Rock  of  Ages.  My  valedictory  ad 
dress  contains  my  opinions  as  to  the  nature  and 
value  of  your  political  Union.  /  re-endorse  it. 
Representing  the  people  and  responsible  to 
them,  like  the  State  Governments,  there  is 
not  as  much  danger  of  usurpation  by  the  Geri- 


by  the  freemen  of  the  United  States  as  their }  eral  as  by  a  State  Government — because  the 
fundamental  laic,  for  "consolidating"  their  former  is  not  so  near  the  affections  and  felt  in- 
Union,  and  overruling  all  opposition,  from  in-  terests  of  its  constituency,  and  is  subject  to 
dividuals  or  States,  to  their  aggregate  power  more  checks.  The  tendency  of  your  political 
and  will — and  called  also  Federal,  because  the  {system  is  centrifugal,  rather  than  centripetal. 
people,  in  their  federal  capacity  made  it,  and  i  There  is  no  danger  of  too  much  centralization, 
because,  in  the  same  capacity  they  were  still  j  unless  it  should  arise  from  a  corrupt  abuse  of 
permitted  to  act  as  subordinate  sovereignties  {Executive  patronage — it  will  never  result  from 
over  their  own  local  concerns.  The  great  ob-  |  Legislative  or  Judicial  encroachment  on  State 


ject  was  to  substitute  a  presiding  Government 
over  the  people  of  all  the  States  in  lieu  of  a 
confederation  of  sovereign  States,  and  to  endow 
that  Government  with  all  power  necessary  for 
maintaining,  against  all  opposition,  its  own 


rights.  But  should  it  ever  approach,  resort  to 
no  other  than  peaceful  and  constitutional  rem 
edies,  unless  you  shall  be  well  satisfied  that 
revolution  will  be  better  for  you  and  the 
cause  of  liberty,  than  submission.  You  hare 


authority.  Thus  universally  understood,  I  j  never  hitherto  had  cause  for  that  last  resort  of 
approved  and  signed  it  as  President  of  the  I  oppressed  man — and  there  is  but  little  ground 
Federal  Convention,  and,  with  the  same  under-  jfor  apprehending  that  you  ever  will  havesuffi- 
stauding,  it  was  ratified  by  tho  people  of  the  j  cient  cause  for  breaking  up  a  Union  which  you 


States.     Such  an  absurdity  as  a   concurrent 
sovereignty  in  the  States  was  not  then  thought 
46 


could  never  again  re-establish  on  as  good 
foundations.      Its  destruction  would  be  an 


362 


ADDRESS  ON  THE  22nd  FEBRUARY,  1852. 


act  of  madness.  The  map  of  North  America 
— with  its  rivers,  its  lakes,  its  mountains,  its 
seas,  its  climates,  and  its  soils — points  to 
Union.  Its  population — of  common  origin, 
common  language,  common  faith,  common 
history,  common  name,  and  common  glory — 
invites  to  Union;  the  blessings  it  has  conferred, 
and  the  history  of  all  confederations  demon 
strate  the  ralue  of  the  principle  of  your  Union; 
and  the  memories  of  the  past,  the  enjoyments 
of  the  present,  and  the  hopes  of  the  future, 
consecrate  that  Union  as  cemented  with  the 
blood  and  constructed  by  the  wisdom  of  your 
rerolutionary  fathers.  Under  its  auspices  you 
have  grown  and  prospered  beyond  example — 
your  will  rules  from  the  Northern  Lakes  to  the 
Gulf  of  Mexico,  and  from  the  Atlantic  to  the 
Pacific  Ocean — every  citizen  is  a  sovereign  in 
his  sphere,  and  every  freeman  is  as  free  and 
secure  as  he  could  be  under  any  good  govern 
ment — your  progress  and  improvement  are  the 
wonder  of  the  age,  and  you  are  already  the 
light  of  the  civilized  world.  Be  grateful  for 
those  unequalled  blessings,  and  cling  to  your 
Union  as  the  ark  of  their  and  your  safety. 
Let  him  who  is  not  content  with  it  remember 
the  illustrative  fable  of  the  members  of  the 
human  body,  complaining  of  the  stomach  as 
monopolizing  and  rapacious,  and  on  that  de 
lusive  egotism,  proposing  to  destroy  the 
source  of  their  nourishment  and  health. 

Forcible  resistance  to  the  authorities  of  the 
Constitution  is  not  a  political  right — successful 
resistance  by  force  would  therefore  be  revolu 
tion — and  unless  the  result  should  be  an  ag 
gregate  blessing,  it  would  be  treason  to  your 
Constitution — treason  to  the  genius  of  liberty 
— treason  to  the  memory  of  your  predecessors 
— treason  to  the  hopes  of  your  posterity,  and 
treason  to  all  mankind. 

Whoever  shall  attempt  such  manifold  and  sac- 
riligious  treason,  would  deserve  eternal  infamy. 

But  go  on  as  hitherto,  and  there  will  be  no 
danger.  Cherish  your  own  boundless  resour 
ces  of  matter  and  mind.  Improve  your 
country — encourage  fraternity  and  intelli 
gence  by  arteries  of  circulation  throughout 
your  land — educate  all  your  children — cul 
tivate  their  bodies,  their  minds,  and  their 
morals — indoctrinate  them  in  the  benign  prin 
ciples  of  a  rational  and  charitable  Christianity 
— acquaint  them  early  with  the  true  principles 
and  history  of  your  institutions — attend  to 
your  own  concerns — abstain  from  officious  in 
terference  with  those  of  other  nations — elect 
your  best  and  ablest  men  to  all  places  of 
public  trust — never  become  parasites  or  place 
men,  or  sycophants  of  rich  men — countenance 
virtue,  and  frown  on  rice,  in  whatever  habili 
ments  they  may  be  clad — uphold  the  law  as 
the  shield  of  the  weak  and  the  sanctuary  of 


the   innocent — love   your  country   and  your 

kind — and  steadfastly  maintain  your  blessed 

Union  and  all  its  vital  powers  and  functions — 

and  then  the  close  of  this  century  will  exhibit 

to  the  admiration  of  good  men  and  angels, 

and  to  the  terror  of  bad  men  and  demons,  one 

hundred  millions  of  freemen,  of  the  Caucasian 

race,  on  the  continent  of  North  America,  far 

ahead  of  all  other  people  in  privileges  and 

enjoyments,  and  blessed  with  institutions  more 

rational,  laws  more  just,  and  a  country  more 

beautiful  than  any  on  which  the  sun  will  then 

shine — then  "American"    will    be   the    most 

honored  of  national  names — Liberty  the  most 

cherished  of  earthly  possessions — and  all  things 

may  be  ready  for  the  dawn  of  millennial  light 

and  peace;    and  then,  too — though  last,  not 

|  least — American  principles  and   the  English 

;  language  Americanised  will    be  understood 

i  and  admired,  if  not  adopted,  wherever  chris- 

I  tianity  has   a   temple,   science  a  monument, 

or    Liberty     an    altar  on    the  footstool    of 

|  God." 

Fellow-citizens  of  the  United  States,  if  we 
of  this  generation  will  follow  these  counsels, 
this  patriotic  vision  will  become  historic  truth. 
But,  if  we  discard  the  principles  or  neglect 
the  precepts  of  the  tutelar  genius  of  our  coun 
try,  we  must  expect  that  the  doom  of  all  fallen 
republics  will,  at  no  distant  day,  become  our 
unhappy  destiny.  Shall  this  doleful  tale  ever 
be  told  of  the  countrymen  of  Washington,  of 
Franklin,  of  Hamilton,  of  Jefferson,  of  Madi 
son,  of  John  Marshall,  of  Webster,  of  Clay? 
j  Shall  they,  by  their  apostacy  from  the  faith 
of  their  fathers,  verify  the  predictions  of 
j  the  foes  of  self-government,  and,  by  their  de- 
;  generacy  and  recreance,  blast  the  best,  and 
1  perhaps  the  last,  hope  of  the  friends  of  equal 
right1?  Shall  they,  unmindful  of  their  own 
dignity  and  of  the  history  of  ages  past,  yield 
j  themselves  up  to  selfish  demagogues — surren- 
:  der  the  glorious  name  of  American — cast  lot* 
for  the  vestments  of  Washington — crucify  his 
name,  and  scatter  his  ashes  to  the  senseless 
winds?  Forbid  it  reason — forbid  it  liberty — 
forbid  it  our  household  gods — forbid  it  heaven. 
No — this  must  not,  cannot  be  our  ignoble  fate. 
The  age,  with  its  cheering  tokens,  points  to  a 
far  nobler  future.  Under  a  benignant  Provi 
dence,  we  have  cause  to  hope,  that  our  course 
will  continue  onward  and  upward  until  man 
shall  reach  his  ultimate  state  of  sublunary 
dignity. 

Then  let  us  live  in  the  trust  that  the  all-wise 
Creator  of  our  race — who  guided  the  pilgrim 
band  from  the  old  to  the  new  world,  and  has, 
thus  far,  signalized  their  adopted  country  with 
peculiar  blessings — will  still  guide  us  in 
the  pathway  of  duty  and  bless  the  great  mission 
of  liberty  and  light  to  this  Land  of  Promise 


PRELECTION, 


The  following  judicial  opinion  on  important  Constitutional  questions; 
and  the  following  Briefs  in  the  Supreme  Court  of  the  United  States,  and 
petition  for  a  re-hearing  in  the  Appellate  Court  of  Kentucky,  contain 
matter  deemed  useful  and  rather  peculiar ;  and  are  therefore  herein 
re-published  for  more  general  circulation. 


M.  W.  DICKEY,  against  The  Maysville,  Washington,  Paris  and  Lexington 

Turnpike  Road  Company. 

[Messrs.  Robinson  and  Johnson  for  appellant:  Mr.  Owsley  for  appellee.] 
FROM  THE  CIRCUIT  COURT  OF  MASON  COUNTY. 

Chief- Justice  Robertson  Delivered  the  Opinion  of  the  Court. 


THE  only  question  presented  for  considera 
tion  in  this  case,  is  Avhether  Milus  W.  Dickey, 
as  the  contractor  for  carrying  the  United  States' 
Mail  from  Maysville  to  Lexington,  in  this 
State,  has  the  right,  in  execution  of  his  en 
gagement,  to  transport  the  mail  in  stage 
coaches  on  the  turnpike  road  between  those 
ttrmini,  without  paying,  to  the  use  of  the 
Turnpike  Company,  the  rate  of  tollage  exac 
ted  by  it,  under  the  authority  of  its  charter, 
from  other  pe'rsons  for  the  transit  of  their  hor 
ses  and  carriages. 

All  national  power  should  belong  exclusive 
ly  to  the  general  or  national  government. 
And,  as  nothing  can  be  more  national  than 
the  regular  and  certain  diffusion  of  intelligence 
among  the  people  of  the  United  States  through 
the  medium  of  the  public  mail,  therefore,  the 
power  "  to  establish  post  offices  and  post 
roade"  is  expressly  delegated  by  the  federal 
constitution  to  the  Congress  of  the  United 
States;  and  that  power  being  necessarily  ex 
clusive,  plenary,  and  supreme,  no  State  can 
constitutionally  do,  or  authorise  to  be  done, 
any  act  which  may  frustrate,  counteract,  or 
impair,  the  proper  and  effectual  exercise  of  it 
by  national  authority.  From  these  axiomatic 
truths  it  follows,  as  a  plain  corollary,  that  the 
general  government  has  the  unquestionable 
right  to  transport  the  national  mail  whenever 
and  wherever  the  National  Congress,  in  the 
constitutional  exercise  of  its  delegated  powers 
shall  have  prescribed.  But  full,  and  exclu 
sive,  and  sovereign,  as  this  power  must  be 
admitted  to  be,  it  is  not  unlimited.  It  cannot 
appropriate  private  property  to  public  use 
without  either  the  consent  of  the  owner, 
or  the  payment  of  a  just  compensation  for 
the  property  or  for  the  use  of  it.  If  the 
general  government  may  constitutionally  use 
ft  private  way,  or  establish  a  post  road  through 
the  lands,  or  a  post  office  in  the  house  of  a 
private  person,  any  person  whose  property 
shall  be  thus  taken  or  used  for  public  benefit, 
may  lawfully  demand  a  just  compensation  for 
the  property,  or  for  the  use  of  it;  the  federal 
constitution  expressly  secures  it  to  him  by  in 
terdicting  the  appropriation  of  private  property 
to  public  use,  without  the  owner's  consent,  or 
just  compensation. 


Having  been  constructed  by  an  association 
of  individuals  incorporated  into  a  private  body 
politic  by  an  act  of  the  Kentucky  Legislature, 
which  gave  the  corporation  the  right  to  charge 
tolls  according  to  a  prescribed  scale,  in  con 
sideration  of  the  appropriation  of  its  own  funds 
to  the  construction  of  the  road  for  the  public 
benefit — the  turnpike  road  from  Maysville  to 
Lexington  should  be  deemed  private  property, 
so  far  as  the  value  of  the  franchise  and  the 
right  to  preseve-it,  as  conferred  by  the  charter 
in  the  nature  of  a  contract,  maybe  concerned. 
And  therefore,  the  public — whether  it  be  Ken 
tucky  or  the  United  States — can  have  no  con 
stitutional  right  to  use  the  road  without  con 
tributing,  to  its  reparation  and  preservation, 
either  a  just  compensation  for  the  use,  or  the 
rate  of  tollage  prescribed  by  the  corporation 
under  the  sanction  of  its  charter.  By  author 
izing  the  company  to  exact  a  fixed  compensa- 
for  the  use  of  the  road,  the  charter  interfered 
with  or  impaired  the  power  to  carry  the  mail 
wherever  Congress  should  elect  to  carry  it,  no 
more  nor  otherwise  than  it  obstructed  or  im 
paired  the  right  of  every  freeman  to  travel  on 
any  public  way  he  might  choose  thus  to  use. 

Had  Congress  designated  this  road  as  the 
mail  route  from  Maysville  to  Lexington,  the 
right  to  use  it  as  such  would  have  been  subject 
to  the  condition  of  paying  either  a  just  com 
pensation,  or  the  toll  which  every  citizen  is 
required  to  pay;  for  the  road  would  still  have 
been  the  property  of  the  corporation,  and  the 
burthen  of  repairing  it,  when  dilapidated  by 
the  horses  and  coaches  of  the  mail  contractor, 
would  have  devolved  on  the  stockholders. 
There  is  no  restriction,  as  to  locality,  on  the 
the  federal  power  to  establish  post  offices  and 
post  roads.  But  the  right  to  use  private  prop- 
erey  for  a  mail  route,  as  for  any  other  national 
purpose,  being  qualified  by  the  constitutional 
condition  that  a  just  compensation  be  made 
for  the  use  unless  the  owner  shall  voluntarily 
waive  it,  the  power  to  establish  post  offices 
and  post  road*  wherever  Congress  deem  it  ex 
pedient  to  establish  them,  though  exclusive 
and  supreme,  does  not,  therefore,  imply  an 
authority  to  take  or  to  use,  for  that  purpose, 
the  land  or  the  house  of  a  citizen,  or  the  rail 
road  or  McAdamised  road.j  of  associated  citi- 


DICKEY  vs.  TUENPIKE  COMPANY. 


365 


zens,  without  paying  to  the  owner  or  owners 
a  just  compensation. 

The  turnpike  road  between  Maysville  and 
Lexington  is  the  property  of  the  stockholders, 
in  the  same  sense  in  which  the  railroad  be 
tween  Lexington  and  Frankfort  is  the  property 
of  the  Company  whose  money  constructed  it. 
The  only  difference  is,  that  the  railroad  com 
pany  is  not  required  by  its  charter  to  permit 
any  person  to  use  its  road  otherwise  than  for 
transportation  in  its  own  vehicles,  and  the 
charter  of  the  turnpike  company  requires  it  to 
permit  all  persons,  who  may  desire  to  use  its 
road  for  transportation  or  travel,  to  do  so,  in 
their  own  way — on  foot,  on  their  own  horses,  or 
with  their  own  carriages — by  paying  a  pre 
scribed  toll.  And  can  it  be  doubted  that  the 
United  States  would  have  no  constitutional 
right  to  use,  as  a  mail  route,  the  railroad  be 
tween  Lexington  and  Frankfort,  without  the 
consent  of  its  owners,  or  without  paying  them 
for  the  use  a  reasonable  compensation?  He 
who  doubts  on  that  subject,  would  be  chargea 
ble  with  palpable  inconsistency,  unless  he 
should  also  doubt  whether  his  own  house  might 
not  be  taken  and  used  as  a  post  office  without 
his  consent  and  without  any  compensation;  for 
the  power  to  establish  post  offices  and  the  power 
to  establish  post  roads  are  commensurable, 
and  the  one  is  as  sovereign  and  unlimited  as 
the  other,  and  not  in  any  sense  or  in  any 
degree,  more  so. 

Can  the  carrier  of  the  United  States  mail 
have  a  right,  either  legal  or  moral,  to  use  the 
bridge  of  a  private  person,  or  of  an  incorpora 
ted  company  without  paying  pontage,  or  the 
ferry  of  a  grantee  of  such  franchise  without 
paying  ferriage?  That  he  would  have  no  such 
right  is,  in  our  judgment,  indisputable.  And 
the  denial  of  such  an  unjust  and  anomalous 
pretension  is  not  at  all  inconsistent  with  the 
proper  supremacy  of  the  general  government, 
in  the  exercise  of  its  necessary  power  to  trans 
port  the  mail  as  cheaply,  speedily  and  certainly 
as  possible,  and  when  and  where  Congress 
shall  have  prescribed  and  had  authority  to 
prescribe.  The  power  delegated  to  the  gen 
eral  government  over  the  mail  cannot  be 
greater  than  that  which  each  State  once  pos 
sessed  within  its  own  borders;  and  had  the 
people  of  the  States  never  delegated  any  such 
power  to  Congress,  the  State  of  Kentucky,  in 
all  the  plenitude  of  her  power,  upon  that  hy 
pothesis,  would  surely  have  no  right  to  use 
the  Lexington  and  Maysville  turnpike  as  a 
post  road  without  paying  a  just  equivalent  to 
the  company;  for  the  constitution  of  Kentucky, 
like  that  of  the  United  States,  provides  that 
private  property  shall  not  be  taken  for  public 
use  without  "just  compensation"  to  the  owner, 
or  without  his  consent;  and  moreover,  no 
State  can,  consistently  with  the  federal  con 
stitution,  pass  any  legislative  act  impairing 
the  obligation  of  a  contract;  and  not  only  is 
turnpike  stock  private  property,  but  the  charter 
of  the  company  is  a  contract,  entitling  the 


stockholders,  for  a  valuable  consideration,  to 
prescribed  tolls,  of  which  the  legislature  could 
not  deprive  them  without  impairing  the  obli 
gation  of  a  solemn  contract,  and  violating  the 
plighted  faith  of  Kentucky.  There  can,  we 
think,  be  no  doubt  that  the  "State  had  a  perfect 
right  to  make  such  a  contract,  and,  having 
made  it,  is  certainly  under  a  clear  moral  and 
political  obligation  to  observe  it  scrupulously 
and  in  good  faith. 

But,  if  the  Lexington  and  Maysville  turn 
pike  should  be  deemed  in  all  respects  a  State 
road,  and  if  the  power  to  establish  post  roads 
should  be  understood  as  giving  to  Congress 
authority  to  designate  and  use,  as  a  post  road, 
any  highway  in  a  State,  without  the  consent  of 
the  State,  nevertheless,  such  a  power  could 
not  be  understood  as  implying  a  right  to  use 
State  roads  upon  any  terms,  or  in  any  manner 
the  general  government  may  choose  to  pre 
scribe,  or  on  better  terms  than  those  on  which 
the  people  of  the  States  themselves  are  permit 
ted  to  use  them  in  a  similar  manner.  It  cer 
tainly  does  not  impose  on  any  State  the  duty 
either  moral  or  political,  of  making  or  of  re 
pairing  roads  for  post  roads,  but  leaves  them 
in  the  full  possession  of  all  the  discretion  they 
would  otherwise  have  had  to  make  such 
State  roads,  and  to  keep  them  in  such  repair 
as  their  own  convenience  and  judgment  alone 
may  suggest.  The  people  of  the  several 
States  are  under  no  constitutional  obligation 
to  make  or  repair  roads  for  the  use  of  the  gen 
eral  government;  nor  can  they  be  required  to 
apply  their  own  money  or  labor  even  to  the 
keeping  open  of  any  one  of  their  roads  which 
shall  have  been  designated  as  a  post  route; 
for,  though  a  State  highway  once  legally  de 
signated  or  established  as  n.  post  route  may 
continue  dejure  a  post  road  as  long  as  the  act 
of  Congress  by  which  it  was  so  designated  or 
established  shall  remain  unrepealed,  yet  cer 
tainly  the  State  will  not,  therefore,  be  bound 
to  continue  it,  but  may  discontinue  it  as  a  State 
road;  and  consequently,  if,  after  any  such  dis 
continuance  of  any  such  State  road,  the  gen 
eral  government  choose  still  to  use  it  as  a 
post  road,  Congress  must  keep  it  open  and  in 
suitable  condition,  by  the  application  of  na 
tional  means.  The  people  of  a  single  State 
are  not  exclusively  interested  in  the  transpor 
tation  of  the  national  mails  within  and  through 
their  own  Commonwealth;  the  people  of  all 
the  States  are  benefitted  by  the  proper  and  ef 
fectual  transportation  of  intelligence  through 
each  State.  And  hence  the  interest  being  thus 
common,  and  the  power  therefore  national,  the 
burthen,  and  the  responsibility  also,  should  be, 
and  undoubtedly  are,  equally  national,  in 
each  and  every  State.  The  right  to  judge, 
and  the  responsibility  of  judging,  as  to  what 
roads  and  kind  of  road's  the  United  States  shall 
have  for  post  roads,  having  been  devolved  on 
Congress,  a  State  can  neither  exercise  any 
controlling  authority  in  that  respect,  nor  be 
,held  responsible  for  any  deficiency  in  any  of 


866 


DICKEY  vi.  TURNPIKE  COMPANY. 


the  facilities  necessary  or  proper  for  the  most 
effectual  transportation  of  the  mails. 

A  right  of  way,  upon  terms  equal  and  common 
to  all,  is,  in  our  opinion,  the  utmost  privilege 
that  can  be  implied  by  an  authority  to  desig 
nate  State  roads  as  post  routes. 
v_If  one  State  should,  at  a  great  expense,  con 
struct  and  preserve  excellent  roads,  for  the 
use  of  which  it  should  exact  a  prescribed  and 
reasonable  toll  sufficient  for  reparation,  or 
even  for  indemnity  for  the  cost,  the  people  of 
other  States,  not  choosing  to  provide  such 
roads  for  themselves,  would  have  no  right  to 
require  or  expect  that  the  public  mails,  in 
which  they  are  all  interested  as  a  national 
concern,  should  be  transported,  in  carriages  or 
otherwise,  upon  those  costly  and  superior 
roads,  without  any  contribution  from  the  na 
tional  purse  for  such  national  use,  and  for  the 
wear  and  deterioration  necessarily  resulting 
from  it. 

If  Congress,  representing  the  interests  and 
wills  of  the  people  of  all  the  States,  shall  fail 
or  refuse  to  make  any  appropriation  for  con 
structing  or  repairing,  or  for  aiding  the  con 
struction  or  reparation,  of  good  roads  in  a 
State,  the  general  government  would,  as  it 
seems  to  us,  have  no  pretence  for  claiming,  for 
the  federal  public,  any  exclusive  privileges  in 
using  such  roads  as  post  routes,  or  any  ex 
emption  from  the  burthen  common  to  every 
individual  of  the  local  public,  whose  labor 
and  money  alone  made  and  must  preserve 
them.  It  appears  to  us,  that  permission  to  the 
general  government  to  use  State  roads  as  the 
State  and  its  own  citizens  use  them,  and  on 
the  same  terms,  should  be  considered  a  boon 
rather  than  a  burthen — a  valuable  privilege 
rather  than  an  unjust  or  unauthorized  exaction. 

A  State  road  is,  we  think,  private  property, 
as  contra-distinguished  from  federal  property, 
by  the  federal  constitution.  It  belongs  to  the 
people  of  the  State,  was  made  by  them,  must 
be  repaired  and  preserved  by  their  labor  and 
money,  and  is  subject  exclusively  to  their  ju 
risdiction  and  control.  Then,  according  to 
the  constitution  of  the  United  States,  can  the 
general  government  possess  a  paramount 
authority  to  use  and  dilapidate  such  a  road, 
»nd  thus  impose  on  the  people  of  the  State  an 
accumulated  burthen  without  their  consent, 
aud  without  making  any  compensation  for  the 
appropriation  of  their  local  property  to  inter 
national  use?  We  can  perceive  no  plausible 
ground  for  an  affirmative  answer. 

But  the  learned  counsel  for  Dickey  has  ar 
gued  that,  if  the  pOAver  be  conceded  to  a  State 
to  tax  the  general  government  for  transporting 
the  mail  on  a  State  road,  the  right  to  designate 
and  use  State  roads  as  post  roads  might  be 
altogether  frustrated  by  a  perverse  and  cap 
tious  State.  Could  the  power  to  exact  com 
pensation  or  toll  from  the  general  government 
for  using  State  roads  for  post  roads,  imply  an 
illimitable  right  of  exaction  which  might  be 
so  abused  as  to  amount  to  a  prohibition  of  the 


use,  and  had  the  power  over  post  roads  been 
given  to  Congress  for  the  purpose  of  designa 
ting  the  mail  routes,  and  for  no  other  purpose 
than  that  of  designation  and  use,  we  would 
acknowledge  that  the  argument  would  be  not 
less  conclusive  than  it  may,  on  a  superficial 
view  of  it,  seem  to  be  plausible. 

But  we  do  not  admit,  either  that  a  federal 
power  to  designate  and  use  State  roads  for  post 
roads  and  a  State  power  to  exact  a  just  com 
pensation  or  toll  for  the  use  are  necessarily 
conflicting  powers;  or  that  the  Lexington  and 
Maysville  turnpike  has  ever  been  designated 
as  a  post  road;  or  that  the  power  to  establish 
post  roads  was  given  merely  for  enabling 
Congress  to  designate  and  use  State  roads  as 
mail  routes;  or  that  a  denial  of  the  right  to  use 
State  roads  without  the  consent  of  the  State, 
or  without  just  compensation,  would  destroy 
or  essentially  impair  the  national  compre 
hensive  and  supreme  power  "to  establish  post 
roads." 

The  national  power  to  use  the  land  of  a 
citizen  or  a  State  for  an  armory  or  fortifi«ation, 
is  undoubted  and  irrestible.  The  constitution 
al  obligation  to  pay  the  owner  a  just  equiva 
lent,  if  it  be  demanded,  is  equally  undoubted 
and  inevitable.  Yet,  nevertheless,  there  is 
no  conflict  of  power  or  of  right,  and  the  su 
premacy  of  the  general  government  is  unques 
tioned  and  unimpaired.  And  the  acknowledg 
ment  of  a  right  in  a  State  or  a  private  corpora 
tion  or  a  citizen  to  exact  a  toll  from  the  gen 
eral  government,  for  the  use  of  a  road  as  a 
post  road,  .does  not  imply  that  the  right  is  un 
limited.  If  the  general  government  have  no 
right  to  use  a  State  road  or  private  road  with 
out  the  consent  of  the  State  or  owner,  then  the 
power  to  exact  toll  for  using  it  would  undoubt 
edly  be  illimitable;  and  nevertheless,  if  exer 
cised  so  as  to  prevent  the  use,  the  general 
government  would  surely  have  no  just  cause 
to  complain  that  any  of  its  powers  or  rights  had 
been  denied.  But,  if  the  general  government 
have  a  right,  without  the  consent  of  a  State, 
to  use  a  State  road  as  a  post  road,  the  fact 
that  such  a  right  exists,  prescribes  a  clear  and 
indisputable  boundary  to  the  power  of  taxing 
for  the  use;  and  that  is  "a  just  compensation" 
— the  right  to  exact  which  cannot  be  inconsis 
tent  with  the  proper  exercise  of  any  power,  or 
enjoyment  of  any  right,  which  can  be  consti 
tutionally  claimed  by  the  national  govern 
ment. 

If,  as  in  this  case,  the  tax  or  toll  be  uniform 
and  universal,  the  very  fact  that  it  is  so,  is  the 
most  satisfactory  proof  that  it  does  not  exceed 
a  just  compensation:  first — because  it  has  been 
fixed  by  a  public  arid  general  law  operating  on 
all  alike;  and,  secondly — because  it  would  be 
unreasonable  to  presume  that  a  State,  when 
fixing  a  general  rate  of  tollage  for  the  use  of  a 
road  constructed  and  preserved  only  for  public 
use,  would  ever  attempt  to  exact  a  rate  so  ex 
orbitant  as  to  defeat  the  object  of  prescribing  it: 
that  is  profit,  or  indemnity,  to  the  people  of 


DICKEY  vs.  TURNPIKE  COMPANY. 


867 


the  State,  to  be  secured  only  by  the  general 
use  of  it.  And  there  is  no  complaint  that  the 
toll  exacted  in  this  case  exceeds  a  just  com 
pensation. 

Moreover,  as  before  suggested,  we  under 
stand  the  power  to  use  State  roads  as  post 
roads,  to  be  only  a  right  of  common  way;  that 
is,  an  authority  to  use  such  roads  as -the  people 
themselves  use  them,  and  on  the  same  terms — 
neither  better  nor  worse.  And,  on  this  construc 
tion,  there  can  be  no  semblance  of  plausibility 
in  an  argument  founded  on  possible  abuse  of 
State  power. 

But,  unless  we  are  altogether  mistaken,  the 
Maysville  and  Lexington  turnpike  has  never 
been  even  designated  by  Congress  as  a  post 
road.  The  act  of  Congress  directing  the 
mail  to  be  carried  between  Lexington  and 
Maysville,  designated  no  particular  road  or 
route;  and  it  was,  moreover,  passed  prior  to 
the  construction  of  the  turnpike,  which  is  far 
from  being  identical  in  locality  with  the  old 
road  which  it  supplanted.  If,  then,  any  road 
from  Maysville  had  ever  been  designated  as  a 
post  road,  it  was  the  old  and  sometimes  im 
passable  road  which  had  been  discontinued 
since  the  completion  of  the  new  and  far  better 
road  of  the  turnpike  company.  But  in  this, 
as  in  most  other  instances  since  the  adoption 
of  the  federal  constitution,  Congress  has  not 
exercised  its  power  "to  establish  post  roads;" 
but  has  chosen  to  depend  on  the  self-interest 
and  comity  of  the  government  and  people  of 
Kentucky,  and  the  discretion  of  the  mail  con 
tractor,  who  may  carry  the  mail  on  the  turn 
pike,  or  not,  just  as  he  may  prefer  and  be  per 
mitted. 

If,  then,  Mr.  Dickey  be  unwilling  to  pay 
for  using  the  turnpike  road,  he  may,  without 
any  violation  of  the  law,  or  breach  of  his  con 
tract,  adopt  some  other  and  cheaper  road, 
provided  he  shall  carry  the  mail  in  the  time 
required,  and  with  safety.  But  if  he  will  use 
a  road  never  established  as  a  post  road,  he 
certainly  can  have  no  right  to  claim  any  ex 
clusive  privileges,  or  to  refuse  to  comply  with 
the  condition  on  which  alone  every  other  per 
son  is  permitted  to  use  the  same  road;  and 
surely  the  general  government — having  neither 
contributed  to  the  construction  or  reparation 
of  the  turnpike  road,  nor  established  it  as  a 
post  road,  nor  claimed  the  right  to  use  it  with 
out  paying  the  prescribed  toll,  nor  even  stipu 
lated  for  securing  such  use  of  it  to  the  mail 
contractor — could  have  no  pretence  for  com 
plaining  that  the  exaction  of  toll  from  the  con 
tractor,  is  a  defiance  of  its  supremacy,  or  an 
impairment  of  its  rights.  But  that  government 
has  not  complained,  nor  will  it,  as  we  are 
bound  to  presume.  The  Postmaster  General, 
as  we  presume,  made  the  contract  with  Dickey, 
with  the  understanding  by  both  parties,  that 
if,  as  was  doubtless  expected,  he  should  carry 
the  mail  on  the  turnpike,  he  would  have  to 
pay  the  customary  toll,  for  which  he  expected 
to  be  indemnified  by  the  facilities  afforded  by 


such  a  road,  and  by  the  price  allowed  to  him 
by  the  contract;  and  ther«  is,  therefore,  no 
pretence  for  insisting  that  the  exaction  of  tolls 
conflicts  with  any  power  of  the  general  gov 
ernment,  or  for  withholding  from  the  owners 
of  the  road  that  compensation  for  which  the 
contractor  has  been  indemnified,  either  by  his 
contract,  or  by  the  road  itself. 

But  the  simple  power  "to  establish  post 
offices,"  necessarily  including  (as  it  does  and 
has  always  been  understood  as  doing)  plenary 
authority  to  superintend  the  transportation  of 
the  national  mails,  would,  itself  and  alone, 
give  an  implied  right  of  way  over  State  roads 
as  they  shall  be  found  to  exist,  and  cum  onere. 
The  power  to  establish  post  offices  was  given 
by  the  articles  of  confederation  to  the  confed 
erate  Congress.  And,  though  that  body  was 
expressly  interdicted  from  exercising  any  other 
power  than  such  as  had  been  expressly  delega 
ted,  nevertheless  it  had,  invariably  and  without 
question  or  complaint  anywhere,  superintend 
ed  and  regulated  the  transportation  of  the 
entire  mails  of  the  States,  and  used,  for  that 
purpose,  the  roads  of  the  States  as  the  people 
used  them,  and  no  other  roads,  nor  on  other 
or  better  terms. 

But  the  confederate  Congress  had  no  power 
to  make  or  repair  post  roads,  or  to  use  any 
other  road  than  such  as  the  States  choose  to 
keep  open  and  to  use. 

The  want  of  such  comprehensive  and  elective 
power  was,  as  we  presume,  felt  to  be  injurious 
and  sometimes  subversive  of  the  great  end  of 
giving  to  the  organ  of  the  national  will  exclu 
sive  control  over  the  national  mail:  not  be 
cause  mail  contractors  had  to  use  State  roads 
just  as  other  persons  used  them,  but  because 
some  State  roads  were  not  altogether  suitable 
ways  for  the  transportation  of  the  mail  with 
proper  celerity  and  certainty,  and  because 
sometimes  there  might  be  no  road  where  the 
national  interest  might  require  one  for  the 
most  effectual  diffusion  of  intelligence  through 
the  mails,  and  because,  also,  a  State  might 
obstruct  or  derange  the  mails  by  the  discon 
tinuance  of  a  road  which  had  been  used  as  a 
mail  route;  and,  therefore,  when  the  federal 
constitution  was  adopted — and  which  was  in 
tended  to  give  to  a  common  government  all 
national  powers  necessary  for  all  national  ob 
jects — the  people  gave  to  the  national  Con 
gress  the  supplemental  and  important  power 
to  establish  post  roads,  as  well  as  post  offices. 
As  this  new  specific  power  was  not  necessary 
for  giving  authority  to  use  State  roads,  it 
should  not  be  understood  as  conferring  any 
other  right  in  the  designation  and  use  of  such 
roads  as  post  roads,  than  that  which  existed 
before,  and  would  still  have  continued  to  ex 
ist,  without  doubt  under  the  constitution,  had 
it  given  no  other  power  as  to  post  roads  than 
the  pre-existent  power  "to  establish  post  of 
fices/5  which  included  necessarily  the  right 
to  designate  and  use  State  roads  as  post  roads. 
As  to  mere  designation  and  use,  the  only  dif- 


368 


DICKEY  vs.  TtJRMTIKE  COMPANY. 


fercnce  is,  that,  as  the  power  to  establish  a 
post  road  imports  authority  to  fix  permanently 
and  retain,  Congress  may  have  power  to  keep 
open  and  use  a  road  once  designated  as  a  post 
road,  even  though  it  shall  be  obstructed  or  dis 
continued  by  the  State.  If  the  power  to  es 
tablish  post  roads  includes  the  power  to  desig 
nate  and  use  State  roads,  the  right  of  use, 
which  it  may  imply,  cannot — with  the  excep 
tion  just  stated — be  essentially  different  from 
that  implied  by  the  power  to  establish  post 
offices  and  carry  the  mails.  And  so  far  the 
two  powers  over  post  offices  and  post  roads  are 
identical;  but  the  latter  is,  in  other  important 
respects,  more  comprehensive  and  efficient 
than  the  former;  for  we  are  clearly  of  the  opin 
ion  that  both  the  objects  contemplated  by  the 
grant  of  the  new  power  to  establish  post  roads 
and  the  plain  constructive  import  of  the  grant 
itself,  as  made  in  the  constitution,  show  that 
this  comprehensive  and  express  power  was 
given,  not  for  authorizing  the  mere  designation 
and  use  of  State  roads  as  post  roads,  but  for 
enabling  the  general  government  to  make,  re 
pair  and  keep  open  such  roads  in  every  State, 
as  might,  under  any  circumstances,  be  neces 
sary  lor  the  most  effectual  and  satisfactory  ful 
fillment  of  the  great  national  trust  of  transport 
ing  the  national  mails  safely,  certainly,  speed 
ily  and  punctually,  without  any  necessary  de 
pendence  on  the  policy,  or  will,  or  purse  of  any 
one  of  the  States;  and  these  were,  in  our  opin 
ion,  the  only  ends  for  which  that  express  power 
was  given.  And  therefore,  if  Dickey  should 
be  considered  as  having  from  the  general  gov 
ernment  a  charte  blanche,  entitling  him  to  all 
the  privileges  in  the  use  of  any  road  he  may 
prefer  between  Lexington  and  Maysville, 
which  Congress  could  have  conferred  on  him 
by  designating  such  road  as  the  post  route, 
and  if  we  are  mistaken  in  the  opinion  that  the 
turnpike  is  not,  in  all  respects,  a  State  road — 
still,  nevertheless,  we  would  be  of  the  opinion 
that  the  exaction  of  toll  in  this  case  is  neither 
unauthorized  nor  in  any  degree  subversive  of 
the  supreme  power  of  Congress  "to  establish 
post  offices  and  post  roads." 

There  are  those  who  doubt  whether,  in  giv 
ing  to  Congress  the  power  to  establish  post 
roads,  the  people  of  the  States  intended  to 
surrender  to  the  general  government,  as  a  mat- 
of  right,  the  use  of  any  and  every  State  road 
upon  any  other  terms  than  each  State,  for  it 
self,  might  think  fit  to  prescribe.  The  prin 
ciple  ground  of  this  opinion  is  a  belief  that  the 
only  motive  for  giving  to  Congress  the  power 
to  establish  post  roads,  as  well  as  post  offices, 
was  an  apprehension  that,  without  some  such 
independent  national  power,  a  failure  by  any 
one  State  to  provide  roads  in  every  respect 
suitable  for  post  roads,  or  a  refusal  at  any  time, 
to  permit  the  mail  carriers  to  use  any  one  of 
me  roads  of  any  one  State  on  reasonable  terms, 
might  injuriously  obstruct  the  transportation 
of  the  national  mail,  and  tend  to  frustrate  the 
only  end  for  securing  which  the  entire  control 
of  post  offices  and  post  roads  was  surrendered 
by  the  States  to  the  general  government. 


And  hence  it  is  argued  that  one  chief  object 
of  giving  the  powei  to  establish  post  roads, 
implied  an  admission  of  an  antecedent  power 
in  a  State  to  prescribe  its  own  terms  for  the  use 
by  the  general  government,  of  a  State  road, 
and  that,  therefore,  the  power  to  establish  post 
roads  does  not  include  the  right  to  designate 
and  use  State  roads  with  out  the  consent  of  the 
State  but  is  an  ultimate  and  more  transcenden 
tal  authority  to  make  and  repair  national  roads 
for  post  roads  whenever  the  unfitnessor  unrea 
sonableness  of  State  policy  may  render  such  a 
course  expedient. 

But  we  shall  not  discuss  that  question;  for, 
conceding,  as  we  do,  that  the  power  to  estab 
lish  post  roads  includes  the  right  to  use  State 
roads  upon  common  and  reasonable  terms,  we 
are  also  satisfied  that  it  is  much  more  efficient 
and  comprehensive,  and  was  given  only  for 
purposes  very  different  from  any  such  end  as 
that  of  authorizing  Congress  to  use  State  roads 
on  its  own  terms. 

We  will,  therefore,  submit  some  general 
suggestions  as  to  the  character  and  extent  of 
this  high  power. 

Whether  we  consider  the  popular  use  of  the 
word  ''establish,"  or  the  definition  of  it  by  the 
most  approved  lexicographers,  or  the  admitted 
import  of  it  in  the  preamble  and  in  the  fourth 
clause  of  the  eighth  section  of  the  federal  con 
stitution,  it  must  be  undei stood  to  mean,  not 
merely  to  designate,  but  to  create,  erect,  build, 
prepare,  fix  permanently.  Thus,  to  establish 
a  character,  to  establish  oneself  in  business, 
to  establish  a  school,  or  manufactory,  or  gov 
ernment — all  common  and  appropriate  phrases 
— is  not  to  assume  or  adopt  some  pre-existing 
character,  or  business,  or  school,  or  manufac 
tory,  or  government.  To  establish  in  each  of 
those  uses  of  the  phrase,  clearly  expresses  the 
idea  of  creating,  preparing,  founding,  or  build 
ing  up.  In  the  same  sense,  too,  it  is  used  and 
understood  in  the  Bible;  thus  it  is  said,  "The 
Lord  by  wisdom  hath  founded  the  earth;  by 
understanding  hath  he  established  (prepared) 
the  heavens."  Proverbs,  iii.,  19. 

Just  so,  also,  is  it  used  and  understood  in 
the  federal  constitution.  Thus  we  find  in  the 
preamble  these  words,  "-establish  justice;"  "es 
tablish  this  constitution;"  and  in  the  fourth 
clause  of  the  eight  article,  power  given  to 
Congress,  "to  establish  an  uniform  rule  of  nat 
uralization,  and  uniform  laws  on  the  subject 
of  bankruptcies,  throughout  the  United 
States." 

Thus  we  might  present  almost  endless  il 
lustrations  of  the  fact,  that  the  popular  and 
philological,  sacred  and  profane,  oracular  and 
political  import  of  "establish,"  is  not  to  de 
signate,  but  to  found,  prepare,  make,  institute 
and  confirm. 

It  appears  to  us,  therefore,  that  "to  establish 
post  offices  and  post  roads"  means  ex  vi  termini, 
not  only  the  designation  and  adoption  of  an 
existing  house  and  road  for  a  post  office  and 
post  road,  but  also,more  comprehensively,  the 
renting  or  building  of  a  house,  and  the  con 
struction  and  the  reparation  of  a  road,  and  the 
Appropriation  of  money  for  any  of  those  na* 


DICKEY  vs.  TURNPIKE  COMPANY. 


369 


tional  purposes,  whenever  any  of  them  shall 
be  deemed  useful.  And  the  unquestionable 
fact  that  "to  establish"  imports  to  make  or 
create  in  every  other  place  where  it  is  used  in 
the  constitution  and  especially  in  the  fourth 
clause  of  the  eighth  section,  tends  persuasive 
ly,  if  not  conclusively,  to  prove  that  the  same 
words,  used,  without  any  qualification,  di 
rectly  afterwards  in  another  clause  of  the  same 
constitution,  were  understood  in  the  same 
sense  in  which  they  were  employed  in  the 
antecedent  clause,  as  well  as  in  the  preamble. 
We  can  perceive  no  ground  for  discrimination. 
The  sxibject  matter  of  two  clauses  is  not  of  a 
nature  so  essentially  different  as  to  authorize 
a  more  comprehensive  interpretation  of  the 
power  in  the  one  clause,  and  a  more  restrictive 
construction  of  it  in  the  other;  and  the  object 
was  the  same  in  both:  that  is,  to  place  the  Uni 
ted  States  above  dependence  on  any  one  of  the 
States,  so  far  as  naturalization,  and  bankrupt 
cy,  and  post  offices,  and  post  roads,  might  be 
concerned,  as  national  objects. 

A  post  office  cannot  be  established  without 
a  house,  and  a  postmaster,  and  the  adoption  of 
rules  for  regulating  the  office  and  the  trans 
mission  of  the  mail;  and  therefore,  all  of  these 
are  necessarily  constituent  elements  of  the 
comprehensive  power  "to  establish  post  offi 
ces."  And  consequently,  if  Congress  deem 
the  buying  or  building  of  a  house  for  a  post 
office,  expedient,  it  may  and  should  buy  or 
build  one;  and  the  power  to  do  so  could  not  be 
questioned;  because  having  supreme  authority 
"to  establish  post  offices,"  Congress  must,  of 
course,  possess  all  subsidiary  power  "necessa 
ry  and  proper"  for  effectuating  that  authority; 
and  therefore — a  house  being  indispensable 
to  the  existence  of  a  post  office — whether  a 
house  shall  be  rented,  or  bought,  or  built,  is  a 
question  altogether  of  expediency,  and  not, 
in  any  degree,  or  in  any  case,  a  question  of 
power. 

So,  too,  as  roads,  and  good  roads,  are  indis 
pensable  to  the  effectual  establishment  of  post 
roads,  the  supreme  power  "to  establish  post 
roads"  necessarily  includes  the  power  to  make, 
repair  and  preserve  such  roads  as  may  be 
suitable  for  the  most  speedy,  certain  and  effect 
ual  transportations  of  the  mails,  in  coaches  or 
otherwise,  as  may  be  best  for  fulfilling  the 
ends  of  the  very  important  national  power 
"to  establish  post  offices  and  post  roads." 
And  consequently,  whether  Congress  shall,  in 
a  special  instance,  construct  a  post  road,  or 
appropriate  money  for  constructing  one,  or 
whether  it  shall  adopt  a  road  already  made 
under  the  State  authority,  and  use  it  as  it  is, 
and  as  the  people  of  the  State  use  it;  or  wheth 
er,  after  making  a  road  or  adopting  an  existing 
road,  Congress  shall  repair  and  improve  it,  or 
contribute  to  those  objects  when  the  national 
interests  require  the  reparation  and  improve 
ment  of  it,  or  shall  depend  entirely  on  the  will 
and  judgment,  purse  and  labor  of  the  State,  or 
of  any  portion  of  the  people  of  the  State — are 
all  questions  of  expediency  merely,  and,  in 
our  judgment,  neither  of  them  can  ever  be  a 
question  of  constitutional  right. 
47 


If  it  be  the  interest  of  the  United  States  to 

any  the  mail  in  stage  coaches,  directly  from 

me  point  to  another,  between  which  there  is 

an  interjacent  wilderness,  without  any  road  or 

a  sufficient  road,  cannot  Congress  open  a  road? 

.f  it  cannot,  then  it  has  not  power  "to  establish 

lost  offices  and   post  roads1'   wherever  the 

mblic  interest  requires,  or  in  the  manner  most 

idvantageous. 

If,  after  a  State  road  shall  have  been  adopted 
as  a  post  road  for  the  transportation  of  the 
mail  in  coaches,  it  shall  have  been  rendered 
unfit  for  such  use,  in  consequence  chiefly  of 
dilapidations  effected  by  transporting  the  mail 
ipon  it,  cannot  Congress  repair  the  damage  it 
lad  done?  Or,  if  the  State  fail  or  refuse  to 
ceep  the  road  in  a  suitable  condition  for  such 
sublic  use,  may  not,  ought  not,  must  not,  the 
jeneral  government  preserve  it,  so  as  to  be 
able  to  use  it  advantageously  as  a  post  road? 
Or  if,  on  an  important  post  route,  where  the 
mail  is  carried  in  coaches,  a  bridge  should  be 
necessary  to  the  safety  and  proper  celerity  and 
certainty  of  transportation,  and  the  State  fail 
or  refuse  to  make  any  bridge,  may  not,  should 
not,  Congress  have  one  made,  and  appropriate 
the  money  required  for  constructing  and  pre 
serving  it?  A  negative  answer  to  either  of 
these  questions  would  necessarily  imply  that 
Congress  cannot  "establish  post  roads"  in  the 
only  true  and  effectual  sense;  for,  "to  establish 
a  post  road,"  in  the  most  restricted  sense,  is  to 
designate,  keep  and  preserve  such  roads  for 
post  roads  as  the  public  good  shall  require. 

If,  after  a  State  road  shall  have  been  adopted 
or  established  as  a  post  road,  the  State  discon 
tinue  it  as  a  State  road,  will  it  not  still  be  a 
post  road  as  long  as  the  law  establishing  it  as 
such  shall  remain  unrepealed?  If  not,  then  a 
State  can  control  the  general  government  in 
the  establishment  of  post  roads,  and  by  the 
occlusion  of  a  road  constitutionally  established 
as  a  post  road,  may  destroy  it,  and  in  effect, 
repeal  the  law  by  which  it  was  established. 
This  cannot  be;  for  if  Congress  had  power  to 
establish  the  road  as  a  post  road,  it  must  have 
the  power  to  keep  it  open  and  use  it;  because 
the  law  by  which  it  was  established ,  must  be 
the  supreme  law  of  the  land,  and  should 
operate  as  such  until  it  shall  have  been  re 
voked  by  Congress.  Then,  in  the  event  of  a 
discontinuance  of  the  road  by  the  State,  may 
not  the  United  States  still  continue  it  as  a  post 
road?  And,  in  the  event  of  an  actual  occlu 
sion  by  the  State,  has  Congress  no  power  to 
re-open  it,  and  keep  it  open  and  fit  for  use  as 
a  post  road? 

These  questions  are ,  we  think,  too  plain  for 
grave  debate  or  serious  doubt. 

But,  if  Congress  can  thus  reconstruct  or  re 
pair  a  road  for  a  post  road,  its  power  to  make 
one  de  novo  cannot  be  consistently  doubted. 

Then  it  must,  as  we  think,  be  admitted  that 
there  may  be  cases  in  which  Congress  has  the 
constitutional  authority  to  repair,  reconstruct, 
and  even  make,  roads  for  post  roads. 

But  if  the  power  exist  in  any  case,  it  must 
exist  in  every  case  in  which  a  post  road  is 
necessary  or  is  established. 


370 


DICKEY  vs,  TURNPIKE  COMPANY. 


Power  and  the  expediency  of  exercising  it, 
are  obviously  distinct  and  essentially  inde 
pendent  things.  The  inexpediency  of  an  act 
of  Congress  does  not  prove  that  il  is  uncon 


stitutional;  nor  can  it 
constitutionality.       A 


expediency  prove  its 
declaration     of    war 


against  England  might,  at  this  time,  or  possi 
bly  at  any  time,  be  unjust  and  impolitic;  but 
the  constitutional  authority  of  Congress  to  de 
clare  war,  now  or  at  any  one  time,  against 
England  or  any  other  nation,  whether  with  or 
without  sufficient  cause,  is  express  and  un 
doubted.  It  might,  and  doubtless  would,  be 
essentially  inexpedient  for  Congress  to  abolish 
slavery  in  the  District  of  Columbia;  but, 
having  full  and  exclusive  legislative  authority 


over  that  district,  it  may  nevertheless  be  true 


there 


And,  if  the  power  to  make  or  repair  post 
roads,  be  not  express,  but  be  only  implied,  the 
question  whether  it  exist  in  a  given  case,  docs 
not  depend  on  that  of  the  expediency  or  inex 
pediency  of  exercising  it.  An  implied  power, 
in  the  proper  political  sen.sc,  is  a  right  to  use 
a  suitable  mean  for  effectuating  the  end  of  some 
express  power.  And  consequently,  the  ques 
tion  whether  a  power,  not  expressly  given,  is 
implied,  does  not  depend,  either  on  the  expe 
diency  of  exercising  it,  oirthe  usefulness  of  the 
end  to  be  accomplished  by  exercising  it;  but 
depends  altogether  on  whether  the  thing  done 
or  to  be  done  be  necessary  and  proper  as  a  mean 
for  effecting  the  end  of  any  power  expressly 
given  to  the  general  government.  Thus,  if  a 


National  Bank  be  a  suitable  agent  for  carrying 
into  complete  effect  any  one  power  expressly 
I  delegated  to  the  general  goverment,  and  if,  as  a 


that  Congress  has  power  to  enact  that 
shall  be  no  slavery  there. 

It  might  even  now,  in  the  opinion  of  many  , 
persons,  and  possibly  may,  at  some  future  day,  I  mean  for  that  purpose,  it  would  have  an  ob- 

*    -1     •  -  •>  --  -  -*•  "  -       •     ••       <•  '••  i       -  vious  relation  to  the  end  ot  anv  such 


in  the  judgment  of  a  majority  of  the  people  of 
the  United  States  and  of  Congress,  be  expe 
dient  to  abolish  slavery  in  all  the  States. 
But,  nevertheless,  no  rational  mind  could  doubt 
that  Congress  has  no  power  to  legislate  on  that 
subject. 

It  may  be  inexpedient  to  establish  a  post  office 
at  a  particular  place,  but  the  power  to  establish 
one  at  any  place  in  the  United  States,  is  un 
questionable.  So,  too,  where  there  is  a  good 
State  road,  sufficient  for  every  proper  purpose 
as  a  post  road,  Congress  would  doubtles  con 
sider  it  more  expedient  to  adopt  such  a  road 
than  to  make  a  new  one;  and,  if  the  State 
should  choose  to  keep  the  road  in  good  and 
suitable  condition,  without  claiming  any  con 
tribution  from  the  United  States,  or  exacting 
any  compensation  for  the  use  of  it  as  a  post 
road,  an  appropriation  of  money  by  the  gen 
eral  government,  for  aiding  the  preservation  of 
the  road,  however  just  it  would  be,  might  be 
deemed  by  Congress  unnecssary  and  inexpe 
dient.  But  the  power  to  make  or  repair  the 
road  should  not,  therefore,  be  denied  or 
questioned. 

All  the  powers  over  post  offices  and  post 
roads-  which  the  States  ever  possessed,  have 
been  wisely  transferred,  as  one  indivisible  na 
tional  power,  to  the  general  government, 
which  now  possesses,  of  course,  all  the  author 
ity,  in  that  respect,  which  all  the  people  of  all 
the  States,  either  aggregately  or  in  seperate 
State  sovereignties,  could  possess  and  delegate. 
And  under  the  plenary  power  to  establish  post 
roads,  Congress  must,  therefore,  have  as  much 
right  to  make  and  repair  roads  as  the  States 
ever  had,  for  the  purpose  of  having  suitable 


power, 

and  be  adapted  to  the  fulfillment  of  that  end, 
Congress  undoubtedly  has  the  implied  or  in 
cidental  power  to  establish  such  an  institution. 
But  if,  when  established,  it  would  have  no  re 
lation,  as  a  mean  to  such  an  end,  Congress 
could  have  no  power  to  establish  it — however 
expedient  or  salutary  it  might  be  admitted  to 
be  in  its  influence  on  the  enterprise  and  busi 
ness  of  the  people  of  the  United  States. 

Wherefore,  we  conclude  that,  as  it  must  be 
admitted  that,  in  some  cases  which  might  oc 
cur,  Congress  has  express  power  to  make  and 
repair  post  roads,  the  question  whether  it 
should  make  or  repair  any  or  every  post  road, 
is  one  of  policy  and  not  of  power;  and  that, 
therefore,  it  has  express  power  to  make  and 
repair  post  roads,  whenever  it  shall  deem  such 
a  course  useful  and  proper. 

If  the  power  to  establish  post  roads  should 
even  be  restricted  to  the  designation  and  con 
tinuance  of  roads,  the  power  to  remove  obstruc 
tions,  re-open  the  roads  when  closed,  and  re 
pair  them  when  repairs  arc  necessary,  so  as  to 
secure  a  proper  and  advantageous  use  of  them 
as  post  roads,  as  long  as  Congress  shall  choose 
to  continue  them  as  such,  cannot,  as  we  think, 
and  have  before  suggested,  be  doubted  by  any 
considerate  and  dispassionate  mind.  And  the 
power  to  keep,  as  a  post  road,  any  road  once 
established  as  such,  and  re-open  and  repair  it, 
is  but  the  power  to  make  a  post  road. 

But  if  the  powers  we  have  been  considering, 
be  not  such  as  should  be  deemed  express,  we  are 
clearly  of  the  opinion  that  they  are  all  implied. 

No  person,  so  far  as  we  know  or  believe, 
now  denies  the  existence  of  implied  powers  in 


post  roads.     The  consent  of  a  State  is  not  in-   the  general  government.     The  federal  consti- 
dispensable;  for,  if  the  constitution  give   the  j  tution  itself  shows  that  such  powers  were  con- 


power,  it  exists  without  the  concurrence  of 
any  State;  and  if  the  constitution  did  not  del 


egate  the  power  to  Congress,  the  consent  of  a  power  "to  make  all  laws  which  shall  be   ne- 


State,  or  of  all  the  States,  could  not  give  it 
without  an  amendment  of  that  national  charter, 
irom  which  alone  Congress  derives  or  can  de 
rive  legislative  authority. 


templated  by  those  who  adopted  it;  for  it  ex 
pressly  declares     that   Congress  shall    have 


cessary  and  proper  for  carrying  into  execution" 
the  powers  expressly  delegated  to  the  govern 
ment  of  the  United  States;  and  the  first 
amendment  adopted  by  the  people  necessarily 


DICKEY  vs.  TURNPIKE  COMPANY. 


concedes  the  existence  of  implied  powers;  be 
cause  it  interdicts  acts  of  congressional  legis- 


sense,  the  qrtestion  is  one  of  expediency  only, 
and  not  of  power.     This  is  illustrated  by  prac- 


lation  for  -which  there  was  no  express  grant  of  tical  proofs  abundantly  furnished  in  the  history 
power,  and  which,  therefore,  must  have  been  of  national  legislation,  every  year  since  the 
considered  as  having  been  authorized  by  inci 
dental  or  resulting  powers. 

But,  without  either  of  these  concessions  of 
implied  powers,  such  powers  would  have  ex 
isted  to  as  great  an  extent  precisely  as  they  do 
now  exist;  for  it  is  a  self-evident  truth,  that 
an  express  and  unqualified  power  to  do  a  thing, 
necessarily  implies  the  power  to  use  all  the  ne 
cessary  and  proper  means  for  doing  it  effectu 
ally;  that  is,  such  means  as  will  effect  the  end  of 
the  express  grant,  and  are  neither  inconsistent 
with  the  object  of  the  grant,  nor  have  been  pro 
hibited.  The  constitution  only  designates  cer 
tain  general  ends,  and  expressly  confers  only 
certain  comprehensive  powers.  Subsidiary  pow 
ers  are  implied  and  could  not  have  been  enume 
rated.  All  powers  necessary  and  proper  for 
executing  the  enumerated  powers,  or  for  fulfil 
ling  the  duties  imposed  by  the  constitution, 
are  implied,  and  exist  as  certainly  as  if  they 


had  been  expressly  given — excepting  so  far 
only  as  they  shall  have  been  prohibited. 

Between  the  strict  constructionist  and  the 
latitudinarian,  there  is  no  dispute  as  to  the 
general  fact  that  implied  powers  exist.  The 
only  difference  of  opinion  among  rational  men, 
is  that  which  exists  respecting  the  true  test  for 
ascertaining  when  a  power  is  implied,  and  that 
also,  which  must  ever  exist  concerning  the 
extent  of  implied  powers.  All  admit  that 
there  is  implied  power  to  adopt  any  mean  that 
is  "necessary  and  proper"  for  effecting  the 
end  of  any  express  power.  But  enlightened 
men  disagree  as  to  what  is  "necessary  and 
proper,"  and  also  as  to  the  kind  or  degree  of 
necessity  which  must  exist  before  power  will 
be  implied. 

But  if  power  to  adopt  a  particular  mean  for 
attaining  the  end  of  some  express  power, 
should  not  be  implied  unless  that  mean  be  in 
dispensable — that  is,  unless  the  express  power 
cannot  otherwise  be  executed — then  it  is  de 
monstrable  that  there  can  be  no  implied  power; 
for  it  is  evident  that  suitable  or  effectual 
means  for  executing  every  express  grant  of 
power,  arc  various,  and  of  almost  infinite  mod 
ifications;  and,  therefore,  no  single  mean  can 
be  deemed  indispensable,  because  the  power 
may  be  executed  by  some  other  mean.  But, 
although  no  one  mean  alone  can  be  deemed 
indispensable,  yet,  as  no  end  can  be  accom 
plished  without  some  means,  all  the  means 
which  arc  adapted  to  un  end,  and  will  effec 
tuate  it,  are  necessary,  and  each  is  equally, 
and  in  the  same  sense,  necessary.  And  there 
fore,  if  any  one  of  them  be  constitutional,  any 
other  of  them  must  be  equally  so,  unless  it  be 
prohibited  by  the  constitution,  or  be  subversive 
of  some  fundamental  principle,  and  therefore 
would  not  be  "proper"  as  well  as  necessary. 
And,  of  course,  in  choosing  between  "proper" 
means,  thus  equally  necessary  in  the  political 


commencement  of  the  federal  government. 

Then,  as  a  road  can  neither  be  made  nor  pre 
served  fit  for  use,  without  labor  or  money,  and 
generally  both — can  it  be  doubted  that,  in 
fully  and  effectually  executing  the  express 
trust  of  establishing  post  roads,  Congress  may 
have  the  implied  power  to  appropriate  money 
to  construct,  or  help  to  construct,  and  to  repair, 
or  aid  in  repairing,  a  post  road?  or  to  pay  a 
just  compensation  for  using  and  impairing  a 
road  made  and  repaired  by  State  authority  and 
State  means  alone?  This  should  certainly 
not  be  doubted  by  any,  except  such  persons  as 
could  deny  that  the  power  "to  establish  post 
offices  and  post  roads"  embraces  the  power  to 
superintend  and  regulate  the  mail,  and  to  do, 
also,  whatever  maybe  "necessary  and  proper" 
for  securing  the  transportation  of  it,  as  dis- 
tributively,  cheaply,  speedily,  and  safely,  as 
the  public  interest  may  require.  It  cannot, 
surely,  be  seriously  doubted  by  any  person 
who  admits  that,  under  the  power  "to  estab 
lish  post  offices  and  post  roads,"  the  general 
government  may  appoint  postmasters,  make 
contracts  for  carrying  the  mail,  on  horses,  or 
in  coaches,  or  in  steamboats,  require  the  citi 
zen  to  pay  postage,  and  punish  him,  "even 
unto  death,"  for  obstructing  or  robbing  the  mail. 
By  the  comprehensive  power  "to  establish 
post  offices  and  post  roads,"  the  people  who 
adopted  the  federal  constitution  intended  to 
give  to  the  national  Congress  all  the  power 
necessary  for  controlling  the  entire  mail  es 
tablishment  of  the  Union,  in  such  a  manner  as 
most  certain!}-  to  effectuate  the  end  for  which 
the  general  power  was  delegated;  and  that 
was,  the  prompt,  punctual,  and  certain  distri 
bution  of  intelligence,  without  any  of  the  in 
conveniences,  obstructions  or  delays,  that  might 
be  apprehended  from  discordant  and  inefficient 
State  regulations,  or  from  any  dependence  on 
State  authority  or  State  will.  And  therefore, 
as  the  general,  and  not  any  State  government,  is 
responsible  for  the  faithful  and  satisfactory 
execution  of  this  important  trust,  and  must,  of 
course,  possess,  not  only  the  exclusive  right 
to  decide  as  to  the  best  modes  of  fulfilling  it, 
but  supreme  power  to  provide  and  enforce  the 
requisite  means  for  attaining  the  general  end, 
it  must  have  the  authority  to  judge  whether 
the  roads  in  any  State  are  suitable  or  sufficient 
for  proper  post  roads;  and  if,  in  its  judgment, 
there  be,  anywhere,  any  deficiency  of  road  facil 
ity,  it  must  have  the  implied  power  to  supply 
the  deficiency,  either  by  construction,  re-con 
struction,  or  reparation,  as  it  shall  consider 


most  expedient. 

A  State   cannot  claim 


the  right  to  decide 


whether  she  has  all  the  roads  which  the  gen 
eral  government  needs  for  transporting  the 
mails;  nor  whether  all  her  roads  are  in  a  suit 
able  condition  for  post  roads;  nor  can  the 


372 


DICKEY  vs.  TURNPIKE  COMPANY. 


general  goYerament  be  required  to  depend 
altogether  on  any  State  for  the  reparation  or 
preservation  of  post  roads;  for,  in  those  re 
spects,  the  States,  haying  retained  no  power, 
can  claim  the  right  to  exercise  none. 

The  prevailing  practice  of  the  general  gov 
ernment  has  been  to  adopt  State  roads  as  it 
finds  them;  to  use  them  as  the  people  of  the 
State  use  them;  and  to  leave  to  them,  not  only 
the  whole  burthen  of  making  and  repairing  all 
roads,  but  the  discretion  to  decide  how  and  when 
such  as  have  been  established  as  post  roads 
shall  be  repaired,  improved,  altered,  and 
changed.  This  may  he  expedient  in  many, 
perhaps  most,  instances.  But  it  is  often  un 
just  to  the  several  States,  and  may  be  essen 
tially  prejudicial  to  the  interests  of  the  United 
States.  When  a  road  is  dilapidated  by  the 
»use  made  of  it  by  the  general  government, 
it  t  would  be 'right  for  that  government  to 
repair  the  injury  it  had  done;  power  to  do  such 
justice  cannot  surely  be  denied;  and  when  a 
post  road  is  not  kept,  by  State  authority  and 
State  means,  in  such  a  condition  as  the  inter 
est  of  the  United  States  requires  that  it  should 
be  kept,  for  the  most  effectual  transportation 
of  the  mail,  the  general  government  should, 
with  its  own  means,  improve  and  preserve  it 
as  it  should  be  improved  and  preserved. 

Every  post  road  is  a  national  road.  So  far 
as  it  is  a  post  road,  it  is  as  national  as  the 
Chesapeake  Bay,  or  the  Mississippi  river;  be 
cause,  so  far  as  it  is  sucli  a  road,  the  people  of 
all  the  States  have  an  interest  in  it;  and  there 
fore,  to  that  extent,  it  is  undoubtedly  a  United 
States  road,  and  may,  of  course,  be  repaired 
and  improved  by  the  United  States. 

By  the  articles  of  confederation,  as  before 
suggested,  the  confederate  Congress  had  ex 
press  and  exclusive  power  "to  establish  post 
offices;"  but,  as  it  possessed  no  implied  power, 
it  had  no  authority  to  "establish  post  roads." 
Nevertheless  the  confederation  appointed  post 
masters,  established  post  offices,  superintended 
and  directed  the  entire  mail  of  all  the  States, 
and  used,  without  queston  or  complaint,  the 
State  roads,  just  as  they  have  been  generally 
used  since  the  adoption  of  the  federal  consti 
tution.  But,  notwithstanding  this  practical 
interpretation  of  the  power  "to  establish  post 
offices,"  the  Federal  Convention,  and  the 
people  who  ratified  the  constitution  proposed 
by  it,  felt  that  the  power  "to  establish  post 
offices"  was  not  sufficiently  ample;  and  there 
fore,  they  added  the  auxiliary  power,  also, 
"to  establish  post  roads."  This  historic  fact 
alone  tends  directly  and  persuasively  to  show 
that  the  power  "to  establish  post  roads"  was 
intended  to  include  more  than  an  authority 
merely  to  designate  post  routes;  for  otherwise 
— as  that  authority  had  been  possessed  and 
exercised  under  the  isolated  power  "to  estab 
lish  post  offices" — there  was  no  motive  for 
euperadding  the  express  power  to  establish 
"post  roads." 


We  cannot,  therefore,  resist  the  conclusion 
that  the  power  to  establish  post  roads  is  some-t 
thi  ng  more  than  the  power  "to  establish  pos 
offices;"  that  the  former  is,  as  to  post  roads, 
as  plenary  and  supreme  as  the  latter  can  be  as 
to  post  offices;  that  both  together  were  under 
stood  and  intended  to  embrace  everything  ne 
cessary  and  proper  for  regulating  and  trans 
porting  the  mails  of  the  United  States  in  such 
a  manner  as  the  national  Congress  should 
deem  best,  and  choose  to  provide  for  and  pre 
scribe;  that  consequently,  Congress  must  have 
at  least  implied  power  to  make,  improve,  and 
repair  post  roads,  whenever  and  wherever  it 
shall  consider  such  a  course  necessary  and 
proper;  and,  a  fortiori,  the  implied  or  rather 
the  resulting  power  to  appropriate  money  to 
any  of  those  national  purposes. 

Congress  has  not,  for  obvious  reasons,  es 
tablished  the  habit  of  either  making  or  repair 
ing,  or  of  appropriating  money  to  make  or  re 
pair,  post  roads;  neither  has  it  established  the 
habit  of  even  designating  the  roads  on  which 
the  mail  shall  be  carried.  But  the  general 
practice  is  no  proof  as  to  the  constitutional 
power  of  Congress  in  the  one  case  more  than 
in  the  other.  Notwithstanding  the  habitual 
failure  to  designate  post  roads,  the  power  to 
do  so  is  unquestioned;  and  notwithstanding 
the  habitual  forbearance  to  make  or  repair,  or 
appropriate  money  to  make  or  repair,  post 
roads,  the  power  to  do  each  and  all  of  these 
things  is,  as  we  with  equal  confidence  believe, 
clearly  implied,  if  not  expressed.  And  we 
have  no  doubt  that  many  losses,  disappoint 
ments  and  vexations  have  occurred  in  the  mail 
department  and  to  the  people  in  consequence 
of  the  failure  by  congress  to  provide  such  post 
roads,  and  improve  and  repair  them  in  such  a 
manner  as  the  nature  and  object  of  the  trust 
confided  to  it  by  the  constitution  authorized 
and  required;  and  we  have  as  little  doubt  that 
the  making  of  a  good  post  road  in  a  State,  or 
appropriation  of  money  to  make  or  improve,  or 
aid  in  making  or  improving,  a  post  road,  by 
the  general  government  could  never  be  inju 
rious  to  the  State. 

Congress  has  not  adopted  the  practice  of 
building  and  keeping  federal  prisons  and 
court  houses  in  the  several  States,  because  the 
liberal  comity  of  the  States  has  sufficiently 
supplied  the  general  goverment  with  the  use 
of  those  necessary  appendages  to  the  national 
judiciary.  But  who  can  doubt  the  power  of 
Congress  to  build  and  to  keep  a  federal  court 
house  and  jail  in  every  State  in  the  Union? 

The  power  to  appropriate  the  money  of  the 
United  States  to  the  purpose  of  meeting  any 
of  the  demands  of  the  general  government, 
or  of  executing  fully  and  most  effectually,  any 
trust  confided  to  it,  cannot  be  doubted.  In 
deed,  it  might  be  admitted  that  every  govern 
ment,  as  an  artificial  person,  may,  like  a  natu 
ral  person,  have  an  inherent  or  resulting  power 
to  dispose  of  its  own  money  in  any  way  not 
prohibited  by  the  organic  law  of  its  being,  nor 


DICKEY  TB.  TU&NPIKE  COMPANY. 


373 


inconsistent  with  the  end  of  its  creation. 
And  surely  there  is  no  such  limitation,  ex 
press  or  implied,  upon  the  power  to  appropri 
ate  the  money  of  the  United  States,  as  could 
prevent  the  application  of  it  judiciously  to  the 


necessary  and  proper  for  securing  such  a  road 
as  the  public  interest  demands.  But  if  it  will 
not  do  so,  or  when  it  chooses  to  repose  en 
State  authority,  and  rely  on  State  expenditure, 
it  must  use  roads  as  it  finds  them,  and  cannot 


purpose  of  facilitating  the  proper  and  cxpe-  claim  privileges  to  which  the  people  of  the 


States  are  not  themselves  entitled;  and  if  a 
uniform  and  general  toll  be  exacted,  Congress 
cannot  complain  that  its  authority  had  been 
resisted,  or  in  any  degree,  impaired.  •» 

We  therefore  conclude,./?™* — that  the  power 
to  establish  post  roads  was  given  for  the  pur 
pose  of  enabling  the  general  government  to 
make,  and  repair,  and  keep  open,  and  improve, 
post  roads,  whenever  the  exercise  of  any  such 
independent,  national  power  shall  be  deemed 
proper  for  effectuating  the  satisfactory  trans 
portations  of  the  mails;  second — that  it  was 
not  given  for  the  purpose  of  authorizing  Con 
gress  to  adopt  and  use  State  roads  as  post 
roads,  without  any  compensation,  if  any  should 
be  just,  and  should  be  demanded;  third — that, 
so  far  as  the  designation  and  use  of  any  State 
road  as  a  post  route,  may  be  concerned,  the 
power  to  establish  post  roads  cannot  import 
more  than  the  precedent  power  to  establish 
post  offices,  and  transport  the  mails — except 
ing  only,  that  the  one  implies  only  a  right  of 
use,  upon  just  and  common  terms,  as  long 
only  as  a  State  shall  choose  to  continne  a  road 
as  a  State  road,  and  the  other  may  imply  a 
right  in  Congress,  not  only  to  enjoy  a  like  use, 
but  to  continue,  as  a  post  route,  a  road  once 
adopted  or  designated  or  established  as  a  post 
road,  even  after  it  shall  have  been  discontin 
ued  as  a  State  road;  fourth — that,  unless 
Congress  shall  elect  to  exert  its  right  of  emi 
nent  domain,  and  buy  a  State  road,  or  make 
one,  or  help  to  make  or  repair  it,  the  constitu 
tion  gives  no  authority  to  use  it  as  a  post  road, 
without  the  consent  of  the  State  or  owner,  or 
without  making  a  just  compensation  for  the 
use;  and,  fifth — that  therefore,  even  if  the 
Lexington  and  Maysville  turnpike  should  be 
deemed  a  public  State  road  in  all  respects, 
and  if  Dickey,  as  mail  contractor,  has  a  right 
to  transport  the  mail  on  any  public  road  he 
may  prefer  or  choose  to  adopt  between  Lex 
ington  and  Maysville,  lie  cannot  do  so,  nor 
had  Congress  power  to  authorize  him  to  do  so, 
without  paying  for  the  use,  if  demanded,  a 
just  compensation,  and  that  is — prima  facie  at 
least — what  other  persons  are  required  to  pay 
for  a  similar  use  of  it. 

After  refusing,  as  it.did,  by  the  President's 
veto.,  to  contribute  any  thing  to  the  construc 
tion  of  the  Maysville  and  Lexington  turnpike, 

ently  of  State  provision  or  State  consent,  is  the  general  government  could  not,  with  any 
equally  unquestionable;  and,  in  case  of  post  semblance  of  consistency,  justice,  or  grace, 
roads,  the  occasional  exercise  of  that  power  claim  the  right  to  use  and  impair  it,  by  carry - 
would  doubtless  be,  not  only  just,  but  greatly  ' 
advantageous.  Where  there  shall  not  be,  in 


ditious  transporsations  of  the  national  mails. 

Can  any  rational  and  consistent  man,  who 
claims  for  the  general  government  the  harsh 
and  ultra  power  to  use  ad  libitum  the  roads  of 
a  State,  without  either  compensation  to,  or 
consent  by,  the  State,  deny  or  doubt  that 
Congress  has  power  to  appropriate  moi/ey 
to  make,  or  to  repair,  or  to  pay  for  the  use  of, 
public  roads  in  a  State,  used  or  to  be  used  as 
post  roads'?  We  cannot  believe  that  any  such 
suicidal  inconsistency  will  ever  be  exhibited 
by  many  national  statesmen  or  jurists. 

But  the  power  to  pay  for  the  use  of  a  State 
road  necessarily  implies  power  to  appropriate 
money  to  repair,  or  even  make,  post  roads. 

Had  either  of  the  States,  been  alone  interest 
ed  in  the  mails  within  their  respective  borders, 
the  power  to  establish  post  offices  and  post 
roads  would  never  have  been  given  to  the  Con 
gress  of  the  United  States.  But,  the  mail 
being  international,  all  power  over  it  and  over 
all  means  necessary  and  proper  for  making  it 
most  effectual,  was  therefore  transferred  to  the 
councils  of  all  the  States  united  into  one  com 
mon  government  for  purposes  common  to  all. 
And,  all  power  over  the  mail,  and  over  post 
roads,  has  been  thus  surrendered  to  the  gene 
ral  government,  and  as  all  the  people  of  all 
the  States  have  an  interest  in  the  execution  of 
that  power  in  each  State,  there  can,  in  our 
opinion,  be  no  semblance  of  eitheir  justice  or 
authority  for  a  pretension  by  the  national  gov 
ernment  to  a  constitutional  right,  either  to  re 
quire  a  State  to  make  or  repair  post  roads 
with  its  own  labor  or  money,  without  any  as 
sistance  or  retribution  from  the  other  States; 
or,  in  every  instance,  to  defer  to  the  several 
States  the  discretion  of  having  good  or  bad 
post  roads,  as  their  parsimony  or  liberality, 
poverty  or  caprice,  may  happen  to  prevail,  and 
thus  virtually  to  surrender  to  them  individually 
this  important  national  trust. 

It  may  be  generally  best  for  the  general 
government  to  avail  itself  of  the  use  of  Siate 
roads  in  such  condition  as  the  State  may  be 
pleased  to  keep  them,  and  upon  such  terms  as 
they  shall  choose  to  prescribe.  So,  too,  and 
more  obviously  and  generally,  it  may  be  best 
for  the  general  government  to  use,  in  the  like 
manner,  the  jails  and  court  houses  of  the  sev 
eral  States.  But  the  power,  in  each  class  of 
cases,  to  execute  the  national  trusts,  independ- 


every  respect,  a  suitable  post  road,  it  is,  in 
our  opinion,  the  duty  of  the  general  govern 
ment  to  employ  all  the  means  which  shall  be 


ing  the  mail  upon  it,  in  coaches,  without  paying 
to  those  who  did  make  it  with  thier  own 
private  means,  as  much  for  the  use  and  dilapi 
dation  of  it  as  they  have  a  legal  right  to  ex 
act  and  do  receive,  without  objection,  from 


374 


DICKEY  rs.  TURNPIKE  COMPANY. 


all  others  who  enjoy  the  use  of  it,  by  travel 
ling  upon  it  in  carriages. 

Wherefore,  as,  in  every  view  we  have  taken 
of  this  case,  no  power  of  the  general  govern 
ment  has  "been  either  exercised,  or  resisted,  or 
defied — it  is  clearly  our  opinion  that  Dickey, 
as  mail  contractor,  can,  as  a  matter  of  right, 
nse  the  Lexington  and  Maysvillc  turnpike 


road  only  as  others  have  a  right  to  use  it;  and 
I  that,  therefore,  he  may  be,  justly  and  const! 
1  tutionally,  compelled    to  pay  the   prescribe^ 

toll  for  such  use  as  he  shall  elect  to  make  of 

it  for  his  own  advantage  and  convenience. 
It  is  therefore  considered,  that  the  judgment 

of  the  Circuit  Court  against  the  appellant  bo 

affirmed. 


SUPREME  COURT,  U.S.1 


RUSSELL 

vs. 
SOUTHARD 


Appellants'*  Brief. 


Gilbert  C.  Russell,  once  a  Colonel  in  the 
army  of  the  United  States,  bought  from.  Dr. 
John  Floyd,  of  Virginia,  a  tract  of  land  near 
the  city  of  Louisville,  Kentucky  for  the  con 
sideration  of  $12,960  ;  and  on  the  22nd  of 
May,  1826,  Floyd  and  his  wife  conveyed  to 
Russell  the  legal  title  to  the  land  described  as 
containing  216  acres— See  bill,  p.  o,  of  printed 
Record  ;  Floyd's  deed,  p.  12,  and  deposition 
of  R.  Smith,  p.  248. 

As  it  was  not  then  convenient  for  Russell  to 
reside  on  the  land  thus  bought,  he  placed  on 
it  J.  W.  Wing,  as  his  agent  and  manager.  On 
revisiting  Louisville  in  September,  1827,  from 
his  residence  in  Alabama,  Russell  ascertained 
that  Wing  had  incurred  debts  which  could 
not  then  be  paid  otherwise  than  by  borrowing 
money  or  selling  the  farm  : — and  his  desire  to 
raise,  in  one  mode  or  the  other,  a  fund  suffi 
cient  for  paying  those  debts,  being  made  known 
he  was  offered  $10,000  for  his  land  in  real  es- 
state  in  Huntsville,  Alabama— See  the  deposi 
tion  of  0.  Talbot,  p.  186.  But,  unwilling  to 
accede  to  that  offer  for  a  purchase,  Russell, 
thus  unexpectly  pressed  for  money  far  from 
home,  made  an  arrangement  with  James 
Southard,  of  Louisville,  whereby  he  obtained 
from  Southard  an  advance  of  $2,000,  (the  sum 
he  needed,)  and  also  took  an  equitable  assign 
ment  of  two  claims  of  doubtful  value  then  in 
litigation— one  on  Dr.  Johnson  for  $1,2/0  94, 
and  the  other  on  S.  M.  Brown  for  $1,558  87%; 
each  of  which  Southard  carefully  assigned  to 
him  without  recourse,  and  exacted  from  him 
an  acknowledgment  of  the  receipt  of  $4,929 
81,  in  "coin"  of  the  United  States.  Russell's 
interpretation  of  this  arrangement  was,  that 
it  was  a  loan  to  be  secured  by  a  mortgage  on 
the  land  he  had  purchased  from  Floyd;  which 
he  considered  as  effectuated  by  a  conveyance 
signed  by  him  on  the  24th  of  September,  1827, 
purporting  to  be  absolute  on  its  face — See  p. 
14-15,  and  by  a  separate  defeasance  signed 
both  by  Russell  and  Southard,  of  the  same 
date — See  p.  172. 

By  a  writing  simultaneously  executed  by 
Russell,  he  covenanted  to  procure  his  wife's 
relinquishment  of  dower  within  four  months 
from  that  date;  and  covenanted  that,  in  the 
event  of  a  failure  to  do  so,  he  would  pay  to 
Southard  $,3,000,  "as  liquidated  damages  for 
that  failure"— See  p.  14. 


On  a  subsequent  visit  to  Louisville,  in  Oct., 
1830,  Russell  having  discovered  that  the  ag 
gregate  sum,  to-wit:  $4,829  82^,  acknowl 
edged  to  hare  been  received  from  Southard, 
was  $100  more  than  the  amount  actually  or 
or  nominally  advanced;  and,  rinding  himself 
disabled  by'misfortune  from  then  repaying  the 
money  he  had'received,demanded  of  Southard 
$100  so  as  to  make  the  sum  nominally  received 
equal  to  that  for  which  he  conveyed  the  land. 
Southard,  after  much  diplomacy,  filially  paid 
him  $100,  and  took  from  him  on  the  6th  of 
October,  1830,  a  writing  acknowledging  the 
payment,  for  the  purpose  avowed  by  Russell, 
and,  "in  full  for  all  demands." 

James  Southard  took  possession  of  the  land 
immediately  after  the  date  of  the  written  me 
morials  of  the  contract,  and  retained  the  pos 
session  until  his  death  in  the  year  1840,  when, 
by  his  will,  his  interest  passed  to  his  brother, 
Daniel  R.  Southard,  who  was  present  at  the 
execution  of  the  conveyance  by  Russell  to  his 
testator,  had  owned  one  of  the  claims  assigned 
to  Russell,  and  drew  the  defeasance,  as  he 
avers  in  his  answer;  Wordan  Pope,  a  lawyer, 
having,  at  the  instance  of  James  Southard, 
drawn  the  absolute  deed,  and  probably  the 
defeasance  also,  which  was  copied  by  D.  R. 
Southard. 

On  the  23d  of  September,  1847,  Russell,  as 
a  citizen  of  the  State  of  Alabama,  filed  a  bill 
in  chancery  against  D.  R.  Southard  and  others, 
as  citizens  of  Kentucky,  in  the  circuit  court  of 
the  United  States  for  Kentucky,  alledging, 
among  other  things,  that  the  contract  between 
J.  Southard  and  himself  was  not  a  sale,  but 
only  a  mortgage  for  securing  the  repayment 
of  a  loan;  that  the  advance  of  the  considera 
tion  recited  in  the  written  memorials  was  a 
loan;  that  the  defeasance  showed  by  its  terms, 
that  the  absolute  conveyance  was  intended  to 
operate  only  as  a  mortgage;  that  D.  R.  South 
ard  had  fraudulently  procured  and  still  with 
held  from  him  the  document  of  defeasance; 
that  his  (Russell's)  embarrassments  had  pre 
vented  a  redemption;  that  both  J.  &  D.  R. 
Southard  had,  ever  since  they  had  fraudu 
lently  obtained  the  receipt  and  the  possession 
of  the  defeasance,  persisted  in  the  false  and 
fraudulent  pretence  that  the  contract  was  a 
conditional  sale  and  not  a  mortgage,  <fec.  <kc., 
and,  after  propounding  to  the  defendant, 
Southard,  various  interrogatories, 


376 


SUPREME  COtJKt,  t).  S. 


with  a  prayer  for  a  decree  for  redemption  011 
equitable  terms. 

On  the  7th  of  February,  1848,  Southard  filed 
a  long  and  elaborate  answer,  in  which  he  de 
nied  that  the  contract  was,  as  alleged,  a  mort 
gage  to  secure  a  loan,  insisting  that  it  was  ai 
absolute  sale,  and  averred  that  the  defeasance 
was  not  "conteinpleted"  by  the  original  con 
tract,  was  not  executed  until  some  days  after 
the  date  of  the  conveyance,  and  was  altogeth 
er  gratuitous  !  and  that  his  testator  had,  on 
the  6th  of  October,  1830,  for  the  consideration 
of  the  sum  of  $100  then  paid  to  Russell,  fi 
nally  concluded  all  controversy  concerning 
the  original  contract;  and  lastly,  pleaded  the 
lapse  of  time. 

On  the  final  hearing,  the  circuit  court  dis 
missed  the  bill;  and  Russell  has  appealed  to 
this  court  for  a  revision  and  reversal  of  the  de 
cree. 

For  reversing  the  dacree,  the  counsel  for  the 
appellant  will  endeavor  to  maintain  the  fol 
lowing  propositions  : 

1st.  That  the  contract,  as  made  and  ex 
hibited,  was  a  mortgage ; 

2d.  That  Russell  has  not,  by  any  a  ct  he 
has  done,  parted  with  his  equity  of  redemp 
tion  ;  and 

3d.  That  his  title  to  relief  is  not  barred  by 
time. 

And,  for  establishing  these  positions  in  their 
numerical  order,  the  appellant's  counsel  re 
spectfully  submit,  to  the  consideration  of  the 
court,  the  following  programme  of  argument 
as  their  Brief : 

1.  The  considerations  conducing  to  show 
a  mortgage  are  of  two  distinct  classes: — 1st. 
Intrinsic.  2d.  Extrinsic. 

1st.     Intrinsic  Evidence. 

The  defeasance  was  not,  as  pietended  by 
D.  R.  Southard,  purely  voluntary ;  1st.  Be 
cause,  if,  as  its  date  and  recitals  import,  it 
was  executed  simultaneously  with  the  con 
veyance,  they  are  integral  and  essential  consti 
tuents  of  one  entire  contract;  2d.  If  the  de 
feasance  was  not  formally  executed  until  a 
day  or  days  after  the  execution  of  the  convey 
ance,  it  was,  nevertheless,  prepared  and  sign 
ed  in  fulfilment  of  the  understanding  of  the 
parties  in  making  their  original  contract,  and 
a  refusal  to  execute  it  would  have  been  a  reck 
less  fraud,  against  the  meditated  effect  of 
which  there  might  have  been  relief;  Maxwell 
vs.  Montacute,  Prechy  526— Walker  vs.  Walk 
er,  2.  Atkins  99. 

This  appears  clearly  from  the  deposition  of 
Dr.  Johnson,  (see  his  answer  p.  210  question 
3rd)  which  is  fortified  by  the  bungling  and 
incredible  answer  of  D.  R.  Southard — and  is 
made  indisputable  by  the  strong  and  almost 
conclusive  improbability  that  such  a  man  as 
J.  Southard  would  voluntarily  have  given  such 
a  defeasance,  after  an  absolute  purchase  in 
good  faith,  of  such  a  tract  of  land,  for  a  price 
so  glaringly  inadequate. 

Then  starting,  as  we  ihink  we  have  a  right 
to  do,  with  the  postulate,  that  the  conveyance 
and  the  defeasance  are  parts  of  one  indivisi 
ble  contract,  just  as  if  the  defeasance  had  been 


inserted  in  the  conveyance,  we  insist  that,  on 
the  face  of  these  documents  alone,  the  law 
construes  them  as  constituting  a  memorial  of 
a  contract  of  a  loan  by  Southard,  and  of  mort 
gage  by  Russell. 

1.  When  an  absolute  conveyance  is  coupled 
with  a  defeasance,  the  law  inclines  to  con 
strue  the  contract  as  a  mortgage,  rather  than  a 
conditional  sale  or  a  defeasable  purchase—- 
this  is  the  dictum  of  every  treatise  on  the 
equitable  doctrine  of  mortgages — Sparsim — 
see  also  Bloodgood  vs.  Zigly  2  Caine's  cases 
— 124  Longuet  vs.  Scaven  1.  viz  sr.  406 — New- 
comb  TS.  Bonham  1st.  Vernon  7 — Manlove, 
vs.  Bale  <fe  Bruton  2nd.  Ib.  83.  Chapman's 
ad'r  vs.  Turne  1  call  244.  Robertson  vs. 
Campbell  2nd.  Ib.  953.  Ross  vs.  Norvell  1. 
Washington  14 — King  vs.  Newman  2.  Munf 'd 
40.  Thompson  vs.  Davenport  1.  Washington 
125.  Robert's  ad'r  vs.  Cox  1.  Rand— 121. 
Penniugton  vs.  Hanby  et  al  4  Munf'd  140. 
Wilson  vs.  Carven  4.  Haywood  93. — Haltier 
vs.Elinaud  2  Dess— 571.  Wharf  vs.  Howell 
5.  Binney  499.  Dey  vs.  Duncomb  2.  John 
son's  chy  R.  189.  Blaney  vs.  Bearce  vs.  Grant 
R.  132.  Harrison  vs.  Trustees  of  Philip's 
Academy  12  Mass.  R.  457.  Erskinevs.  Towns- 
end  2  Ib  475.  Taylor  vs.  Weld  5  Ib  100. 
Carey  vs.  Rawson  8  Ib  159  Brown  vs.  Bement 
8th.  Johnson  R.  150.  Patterson  vg.  Clark  15. 
Ib.  205.  Skinner  vs.  Miller  5.  Litt  R.  86— 
Heytle  vs.  Logan  1.  A.  K.  Marshall  p.  629.  Ed- 
rington  vs.  Harper  3. 1  I.  M.  354 — Morris  vs. 
Nixon  1.  Howard — Livingston  vs.  Story  9th 
and  11  Peters. 

Some  of  these  cases  expressly,  and  most  of 
them  virtually  decide  that  a  writing  or  wri 
tings,  importing  an  absolute  sale  with  a  power 
of  defeasance — nothing  else  appearing— imply 
a  mortgage — whatever  may  be  the  form  or 
terms  of  the  contract ;  and  that,  in  all  such 
cases,  the  burthen  of  proof  aliunde  devolves 
on  the  party  claiming  a  conditional  or  defeas 
able  purchase.  Coote,  in  this  treatise  on  mort 
gages,  16th  Vol.  Law  Lib.  p.  13,  considering 
the  authorities  as  to  the  recognition  and  validi 
ty  of  defeasable  purchases  confused  and  doubt 
ful,  notices  the  case  of  Floyer  vs.  Livingston 

1.  Pr.  Wins.  268 — and  that  of  Miller  vs.  Lees 

2.  Atkins  4!.'4,  sometimes  cited  in  support  of 
such  contracts,   and  not  only  shows  that  Ld. 
Eardwicke  confined  such  constructive  sale  to 
i  rent  charge,  and  repudiated  it    as  to  the  fee 
n  the  land  itself,  but  intimated  that  these  two 

cases  were  decided  on  lapse  of  time  and  other 
Deculiar  circumstances,  and  not  on  the  simple 
'act  of  an  absolute  conveyance  and  an  accom- 
janying  defeasance. 

If  the  general  principle  of  construction,  for 
establishing  which  most  of  the  foregoing  cases 
are  cited,  should  be  overruled  or  disregarded 
— as  Deeds  cannot  be  contradicted  or  explained 
jy  oral  testimony,  without  proof  of  fraud, 
mistake,  or  illegality, — rapacious  moneylend 
ers  might,  and  often  would,  impose  on  neces 
sitous  borrowers  defeasable  purchases  from 

hich  they  could  never  extricate  their  proper 
ty  by  proof  or  by  a  precise  compliance  with 
he  prescribed  terms.  The  principle,  for  which 


SUPREME  OOtTRT,  tT.  S- 


377 


we  contend,  seems  to  us  therefore  to  be  as  just 
and  reasonable,  as  it  is  authoritative. 

The  fact  that  there  is  in  this  case  no  express 
promise  by  Russell  to  pay  the  $4,929  81>£  to 
Southard,  is  not  sufficient  per  se  to  overrule 
the  prima  facie  implication  of  a  mortgage.  A 
contract,  we  admit,  cannot  be  a  mortgage,  as 
to  one  of  the  parties  and  not  as  to  the  other. 
There  must  be  mutuality  in  the  right  of  onfe 
to  redeem,  and  of  the  other  to  foreclose  and 
make  his  debt. 

But  it  is  not  necessary  to  the  existence  of  a 
mortgage  that  the  reciprocal  rights  of  the  par 
ties  shall  be  coextensive — or  that  they  should 
run  quatuor  pedibus.  It  is  sufficient  that  each 
party  may  enforce  the  contract  as  a  mortgage. 
This  the  mortgagee  may  do,  although  there  is 
neither  an  express,  nor  a  collateral  undertak 
ing  by  the  mortgagor  to  pay  the  debt  to  se 
cure  which  the  mortgage  was  made. 

This  is  shewn  by  many  of  the  cases  already 
cited — see  also  Wilcox's  heirs  vs.  Morris  1. 
Murphy  117 — Conway's  Ex's  vs.  Alexander  7. 
Cranch  218— Hart  vs.  Burton  7.  J.  J.Marshall 
322— also  Howell  vs.  Rice  1  Pr.  Wim's  290— 
King  vs.  King  3,  Ib.  361 — Powell  on  mort 
gages  p.  16 — where  in  a  note  Mr.  Coventry 
says — "  a  Bond  and  Covenant  are  said  to  be  of 
no  use  if  the  estate  be  ample." 

Considering,  as  the  court  will,  the  convey 
ance  and  defeasance  as  one  entire  document, 
the  contract  should  be  interpreted  precisely 
as  it  would  have  been  had  both  documents 
been  incorporated  in  the  usual  style,  begin 
ning  with  an  absolute  conveyance  and  con 
cluding  with  a  condition  which  might  entitle 
the  conveyor  to  a  re-conveyance.  And,  thus 
considered,  the  entire  memorial  of  the  contract 
imports  that  Southard  had  advanced  to  Rus 
sell  a  consideration  estimated  at  $4,929  $1% 
— for  which  the  latter  had  conveyed  to  the 
former  a  certain  tract  of  land — the  parties  in 
tending  thereby  that  the  one  might  use  the 
money,  and  the  other  enjoy  the  land  for  four 
months,  and  that,  on  payment  of  the  money 
with  interest,  within  that  time,  the  land  should 
be  re-conveyed.  Is  not  this,  in  its  constructive 
effect,  a  mortgage?  Notwithstanding  the  elab 
orate  effort  of  the  Southards,  and  their  Law 
yers  to  give  it  the  semblance  of  an  absolute 
sale,  and  a  conditional  repurchase,  does  it  not, 
in  its  substance  import  that  the  land  was 
conveyed  to  secure  the  payment  of  the  consid 
eration  advanced  ? 

Does  it  not  amount,  after  all  the  ingenious 
elaboration  of  disguises,  to  a  loan  on  one  side 
and  a  collateral  security  on  the  other  ? 

It  is  settled  by  many  of  the  foregoing  au 
thorities  that,  whatever  may  be  the  form  or 
the  words  of  a  convey  ance,  it  will  be  construed 
a  mortgage  if  designed  or  given  as  a  security, 
or  for  the  purpose  of  coercing  or  securing  a 
payment.  The  form  is  not  essential — the 
intent  is  the  vital  spirit  which  fixes  the  cha 
racter  of  the  thing.  Calling  a  contract 
a  conditional  sale  does  not  make  it  so. 
Extraordinary  efforts  to  give  it  that  complex 
ion  are  even  "evidence  tending,  and  sometimes 
strongly,  to  shew  that  it  was  intended,  by  the 
48 


other  party,  as  a  mortgage.  In  this  case  such 
efforts  appear  on  the  face  of  the  papers.  Look 
at  the  superfluous  repetitions,  and  redundant 
adjectives — such  as  "absolutely  conveyed" — 
"this  agreement  shall  be  at  an  end  and  null  and 
void" — "  this  agreement  of  resale,  is  condi 
tional  and  without  a  valuable  consideration  !" 
— "and  entirely  dependent  <fec.," — "  and  this 
agreement  is  to  be  valid  and  obligatory  only, 
upon  the  said  James  Southard,  upon  the  punc 
tual  payment,  &c." 

What  motive  prompted  all  this  superfluity 
and  tautology  ?  It  was  neither  necessary  nor 
useful,  for  any  other  purpose  than  to  dis'guise 
or  distort  the-  real  contract,  as  intended  and 
understood  by  Russell.  It  is  like  inserting 
in  a  contract  the  declaration — "  this  is  bona 
fide,  no  fraud,  is  intended;"  and  which  is,  itself 
a  significant  badge  of  fraud,  indicating  that 
the  party  was  thinking  of  fraud,  and  trying  to 
conceal  it;  and,  in  this  case,  Southard's  were 
thinking  of  a  mortgage  and  trying  to  elude  it. 

The  provision,  in  the  defeasance,  for  the  re- 
liuquishment  of  Dower,  should  not  have  any 
effect  on  the  construction  of  the  contract. 
Such  relinquishment  was  as  proper  in  the  case 
of  mortgage,  as  in  that  of  a  sale — and  had  been 
amply  secured  by  the  covenant  already  noticed 
with  its  liquidated  damages. 

Then  stripped  of  all  artifice  and  studied 
drapery,  what  is  the  contract,  properly  con 
sidered  in  its  own  nakedness  ?  Is  it  not  an 
entire  agreement  to  convey  land,  on  the  ad 
vance  of  a  certain  sum,  and  to  re-convey  the 
same  land  on  the  return  of  that  sum  with  ac 
cruing  interest  within  a  prescribed  time  ? 
And,  according  to  reason,  as  well  as  the  cita 
tions  already  made,  is  not  such  an  agreement 
prima  facie  to  be  deemed  a  mortgage  for  secur 
ing  the  repayment  of  the  money  advanced  ? 
If  the  land,  as  is  the  fact,  was  worth  more 
than  the  money,  there  was  no  motive  for  tak 
ing  a  bond  or  express  promise  to  pay  it— and 
such  an  undertaking,  was  doubtless,  not  ex 
acted  by  Southard,  because  it  was  unneces 
sary,  and  if  made,  would  have  been  a  strong 
badge  of  a  mortgage.  The  omission  of  it  may 
be  evidence  of  a  fraudulent  design,  but  cannot 
operate  as  decisive  proof  of  a  bona  fide  sale, 
instead  of  a  mortgage.  This  is  proved  by 
many  of  the  cases  herein  before  cited. 

It  is  difficult  to  make  such  an  entire  con 
tract  for  a  conveyance  and  a  conditional  re 
conveyance,  as  will  or  ought  to  be  construed 
a  sale,  and  not  a  security,  (see  especially 
Longuet  vs.  Scaven,  Supra.)  And,  when 
there  is  nothing  else  but  an  absolute  convey 
ance  in  form,  on  the  advance  of  money,  and  a 
covenant  to  reconvey  on  no  other  condition 
than  the  payment  of  the  same  sum  with  in 
terest,  we  doubt  whether  there  is  any  adjudg 
ed  case,  now  entitled  to  respectful  considera 
tion,  in  which  it  has  been  decided  that  the 
contract  was  not  intended  as  a  security.  Such 
we  consider  the  modern  and  more  rational 
doctrine — as  most  of  the  foregoing  authorities 
conduce  to  shew — and  as  Coote  intimates, 
when  he  says:— (20th  L.  Lib'y  p.  17)—"  the 
circumstance  of  an  agreement  to  reconvey> 


378 


SUPREME  COURT,  U.  S. 


although  entered  into  at  the  time  of  the  con 
veyance,  is  not  sufficient  to  convert  the  trans 
action  into  a  mortgage,  if  there  be  evidence 
to  rebut  the  presumption," — which  imports 
that  the  fact,  that  the  conveyance  and  the 
agreement  to  reconvey  on  the  sole  condition  of 
restitution  of  the  consideration  were  made  at 
the  same  time,  and  were  therefore  constituent 
elements  of  one  entire  contract,  will  create  the 
presumption,  prima  fade,  that  the  transaction 
was  intended  as  mere  security,  or  a  mortgage 
— and  that  consequently  a  court  should  decide 
that  the  contract  was  a  mortgage,  unless  the 
party  opposing  that  construction  should  rebut 
thatj  presumption.  An  additional  reason  for 
that  presumption,  having  already  suggested 
one,  is  that  a  conveyance,  for  a  certain  sum, 
and  a  defeasance  on  condition  of  paying  it 
back,  import  a  loan — and  if  the  consideration 
be  a  loan,  no  mere  form  of  contract  can  make 
the  conveyance  a  conditional  sale.  The  "evi 
dence,"  to  rebut  the  presumption  of  a  mort 
gage,  must  therefore  be  such  as  to  shew  that 
the  consideration  of  the  conveyance  was  not  a 
loan;  nothing  else  will  be  sufficient.  Thus, 
in  the  case  of  Barrell  vs.  Sabine  1.  Yernon 
269 — the  grounds  on  which  the  court  decided 
that  the  contract  was  not  a  mortgage,  were 
first  that  there  was  proof  that  the  original 
agreement,  which  was  some  time  afterwards 
consummated  by  a  conveyance,  was  for  a  sale, 
for  a  stipulated  price;  and  that  therefore  the 
consideration  was  not  advanced  as  a  loan — 
and  secondly  that  the  price,  on  the  payment 
of  which  Barrell  covenanted  to  reconvey,  con 
siderably  exceeded  the  sum  he  had  paid  and 
the  interest  thereon. 

That  case  therefore,  even  if  still  recognized 
as  right,  is  no  authority  against  our  position. 
And  thus  also  it  was  decided  by  the  court  of 
Appeals  of  Kentucky,  that  a  covenant  by  a 
purchaser  under  execution  to  convey  the  pro 
perty  so  bought  to  the  original  owner,  on  the 
payment  of  the  purchase  money  and  interest, 
is  not  a  mortgage — because  these  facts,  alone, 
show  that  there  was  no  loan.  But  in  Yoder 
vs.  Strandford  7,  Monroe  480 — the  same  court 
decided  that  "a  fair  purchaser  at  Sheriff's 
Sale,  under  a  contract  with  the  defendant  that 
he  may  redeem,  holds  as  in  mortgage'' — and 
the  reason  is  that  the  money  was  advanced  on 
a  contract  which  contained  a  stipulation  for 
a  reconveyance  on  the  payment  of  the  same 
sum  with  interest.  Nor  can  we  doubt  that  in 
Conway's  Ex'r  vs.  Alexander,  Supra,  the  court 
would  nave  construed  the  transaction  between 
the  parties  a  mortgage,  had  not  the  party  re 
sisting  that  construction  shown  that  the  con 
sideration  was  not  a  loan,  but  was  paid  on  an 
executory  sale  of  land  covenanted  to  be  con 
veyed  to  him,  and  also  proved  other  facts  cor 
roborating  that  deduction  and  shewing  that  a 
redemption  would  be  inevitable.  In  the  case 
of  Heytel  vs.  Logan — supra — it  appeared  that 
Logan  refused  to  loan  money  to  Heytel — but 
consented  for  3000  cash  to  "be  then  paid  to 
purchase  from  him  Town  Lots,  worth  in 
like  payment  something  less  than  $4000,  pro 
bably  about  $3800— that,  thereupon,  Heytel 


made  an  absolute  conveyance  to  Logan ,  who, 
at  the  same  time  paid  him  $3000  in  money, 
and  gave  him  a  written  privilege  to  repur 
chase  the  property  within  eleven  months,  by 
paying  $3000.  There  was  no  extraneous 
proof.  Nevertheless  the  court  of  Appeals  of 
Kentucky,  on  the  face  of  these  papers  alone, 
decided  that  the  contract  was  a  constructive 
loan  and  mortgage,  in  the  absence  of  any  ex 
trinsic  evidence  to  the  contrary.  The  reason 
of  that  decision  seems  to  have  been — that,  as 
the  property  conveyed  was  worth  more  than 
the  amount  advanced  by  Logan,  and  was 
therefore  an  indubitable  security  for  it  as  a 
loan,  and  as  the  reconveyance  was  to  be  made 
on  the  payment  of  that  sum  and  about  15 
per  cent  interest  thereon,  it  was  altogether 
probable  that  the  form  of  a  sale  and  condi 
tional  repurchase  was  given  to  the  contract,  as 
a  contrivance  to  evade  the  law  against  usury 
— and  that,  on  such  facts,  public  policy,  the 
integrity  of  the  law,  and  the  safety  of  neces 
sitous  borrowers  of  money,  required  that  the 
contract  should  be  construed  a  mortgage  to  se 
cure  a  loan. 

Whereupon  we  conclude  that,  as  the  land 
was  conveyed  by  Russell  on  an  agreement 
which  bound  Southard  to  reconvey  it  on  the 
payment,  within  four  months,  of  the  amount 
he  had  advanced,  with  legal  interest,  thereon, 
the  prima  facie  presumption  is  that  the  con 
tract  was  a  mortgage — res  ipsa  loquitur.  And 
we  think  we  are  also  authorised  to  conclude 
that  Southard,  on  whom  the  proof  devolved, 
has  failed  to  shew  that  his  advance  was  not  a 
loan.  On  the  contrary  there  are  considerations 
derived  from  the  writings,  which  fortify  the 
first  ground  just  considered.  The  few  cases 
in  which  the  courts  of  Kentucky  have  recog 
nised  conditional  sales,  were  decided  on  pecu 
liar  grounds,  perfectly  consistent  with  the 
principles  for  which  we  are  contending. 

2.  "  Defeasance''  is  inscribed  on  the  head 
of  the  collateral  document,  as  the  name  the 
parties  themselves  gave  it.     And  does  not  this 
import  that  the  parties  intended  to  defeat  or 
hold  void  the  conveyance  in  the  event  of  the 
prescribed  restitution  of  the  amount  advanced 
and  its  interest  ?  And  if  they  intended  this,  is 
not  their  contract  a  mortgage  ?     Did  not  Rus 
sell  so  understand  it  ? 

3.  The  fact  that  Russell  took  more  than 
half  of  the  consideration  in  debts  of  remote  and 
uncertain  availability,  and  agreed,  as  a  con 
dition  of  reconveyance   to  pay  the  nominal 
amount  and  interest  on  it,   before  he  could 
hope  to  collect,  if  he  ever  could  collect  these 
debts  or  either  of  them,  shews  that  he  was  un 
willing  to  sell  absolutely  his  land  for  anything 
like  what   he  received  from  Southard,   and 
tends  also,  strongly  to  shew  that  Southard's 
object  was  to  convert  those  debts  into  money 
without  the  troubfe,  risk,  or  expense  of  the 
pending  suits.    All  this  implies  a  purpose  in 
directly  to  borrow  and  lend   at  exorbitant  in 
terest,  and  which  purpose  it  was  important  to 
the  usurer  to  conceal.     By  making  his  doubt 
ful  claims  and  his  $2000  produce  him,  within 
four  months,  their  nominal  amount  in  cash  and 


SUPREME  COURT  U.  S, 


interest  and  the  rent  ef  such  a  tract  of  land, 
he  speculated  largely  on  the  necessities  of 
Russell.  This  sacrifice,  Russell's  condition 
may  have  compelled  him  to  encounter,  and  his 
conduct,  as  exhibited  on  the  face  of  the  con 
tract,  indicates  that  he  intended  nothing  else, 
or  more  than  to  loose  the  usury,  to  secure 
which  may  be  presumed  to  have  been  South 
ard's  chief  and  controlling  object. 

4.  Russell's  covenant  to  procure  his  wife's 
relinquishment,  being  an  integral  portion  of 
the  contract  of  conveyance,  may  be  properly 
considered  in  connexion  with  it,  and  as  a  pro 
vision  in  it.  It  was  allowable,  and  might 
have  been  prudent  for  a  mortgagee  to  require 
a  relinquishment  of  dower  by  the  mortgagor's 
wife.  But  why  did  Southard  exact  a  covenant 
to  pay,  'as  liquidated  damages,  which  could 
not  be  resisted  or  reduced,  and  prescribe  an 
amount,  $3,000,  nearly  equal  to  the  value  of 
all  he  had  advanced  or  was  ever  to  advance 
on  the  land  ?  Had  he  been  an  absolute  pur 
chaser  in  good  faith,  and  had  it  been  his  only 
object,  as  in  that  case  it  would  probably  have 
been,  to  secure  his  title  against  the  contingent 
incumbrance  of  dower,  he  would  not  have  re 
quired,  nor  would  Russell  have  given,  any 
such  monstrous  covenant.  But,  if  Russell's 
understanding  was,  that  he  was  only  borrow 
ing  and  giving  a  mortgage  as  security,  he  had 
no  strong  motive  of  interest  to  induce  him  to 
refuse  to  execute  such  a  covenant,  because  he 
knew  that  he  could  avoid  it  by  redemption, 
whenever  he  might  redeem.  And  the  only  con 
sistent  motive  imputable  to  Southard  is,  that 
he  wished  to  add  another  disguise  to  the  trans 
action,  forge  another  chain  for  binding  down 
Russell,  and,  by  holding  up  the  $3,000  in  ter- 
roram,  to  increase  his  chances  of  keeping  the 
land  for  what  he  had  advanced,  or  possibly  foi 
less  than  half*of  it,  by  recovering  the  $3,000. 

For  the  reasons  suggested  in  the  foregoing 
outline,  we  submit  to  the  court  whether  the 
contract  should  not  be  deemed  a  mortgage 
without  the  aid  of  the  extraneous  facts.  Can 
the  artful  effort  of  the  Southards  and  their 
lawyer,  to  give  the  "defeasance"  the  name  of  a 
"conditional  sale,"  change  the  essential  qual 
ity  and  legal  effect  of  the  thing  ?  Every  mort 
gage  literally  purports  to  be  a  conditional  sale. 
Can  the  false  and  fraudulent  allegation  in  the 
"defeasance,"  that  it  was  voluntary  and  with 
out  consideration  transmute  the  conveyance 
into  an  absolute  sale  in  good  faith  ?  On  the 
contrary,  does  not  this  false  and  bungling  ar 
tifice  rather  expose  a  fraudulent  design  to 
hide  the  truth  by  clothing  the  transaction  with 
a  delusive  dress  ? 

We  consider  the  principle  controlling  the 
cases  in  2d  Vernon,  15th  Johnson,  and  1  A. 
K.  M.,  and  in  many  others,  supra,  as  decisive 
of  the  question  involved  in  our  first  position. 

The  extraordinary  character  of  the  written 
memorials  tends  to  fortify,  rather  than  repel, 
the  presumption  of  a  security  arising  from  the 
fact  that  the  conveyance  was  defcasable  on 
the  return  of  the  money  advanced. 

II.  Should  the  court  not  concur  in  the  fore 
going  conclusion,  we  suggest  the  following 


considerations  to  show  that  a  mortgage  is  es 
tablished  by  Extrinsic  facts. 

Whatever  may  be  the  opinion  of  this  court 
as  to  the  general  admissibility  of  oral  to  explain 
or  contradict  written  evidence,  all  the  mem 
bers  of  it  will  concur  in  the  competency  of 
such  testimony  whenever  there  is  proof  of  mis 
take  or  fraud  in  the  execution  of  a  writing,  or 
of  illegality  in  the  consideration  or  object  of 
the  contract  of  which  it  purports  to  be  a  me 
morial.  To  cite  authorities  to  prove  this  po 
sition,  would  be  as  superfluous  as  citations 
for  certifying  the  doctrine  that  a  purchaser, 
with  notice  of  a  trust,  must  take  the  legal 
title  under  a  trust  implied,  in  invitum. 

In  this  case,  not  only  usury,  but  both  mis 
take  and  fraud  also  may  be  inferred  from  the 
facts  in  the  record.  If  the  parties,  by  their 
oral  agreement,  intended  a  loan,  as  we  expect 
to  show,  there  was  usury,  because  not  only 
were  the  two  claims  taken  at  par  not  worth  so 
much,  but  Southard  reserved  six  per  cent, 
the  legal  rate  of  interest,  on  the  whole  nomi 
nal  amount  of  the  advance,  and  the  rent  of 
the  farm  also.  There  must,  also,  have  been 
both  fraud  and  mistake  in  the  execution  of 
the  documents:  Russell  avers  that  the  defeas 
ance,  by  its  terms,  shewed  a  mortgage;  which 
is  a  virtual  allegation  that  if  its  terms  mani 
fest  a  conditional  sale,  he  did  not  understand  it 
and  signed  the  writings  under  a  mistake;  and 
such  should  be  presumed  to  be  the  fact  if  he 
thought  he  was  borrowing;  and  the  other  par 
ty,  on  that  hypothesis,  was  guilty  of  fraud. 
If,  as  we  think  they  do,  the  allegations  of  the 
bill  amount  to  a  charge  of  usury,  fraud,  or 
mistake,  a  more  formal  and  direct  imputation 
of  all  or  either  of  them  is  not  necessary. 

Then,  if  the  court  should  construe  the  con 
tract,  on  the  face  of  the  documents,  to  be  a 
conditional  sale,  and  not  a  mortgage,  we  sub 
mit  the  following  extraneous  considerations 
for  shewing  that  the  advance  was  made  as  a 
loan;  that  the  loan  was  illegal;  that  the  me 
morials  were  procured  by  fraud  or  mistake,  or 
both,  though  either  usury,  fraud  or  mistake 
will  be  enough;  and  consequently,  that  the 
real  contract|was  a  mortgage,  and  no  sale. 

1.  Russell  had,  only  about  sixteen  months 
before  the  date  of  his  conveyance,  bought  the 
farm  for  the  purpose,  as  may  be  presumed,  of 
making  it  his  ultimate  residence,  and  had  paid 
for  it  in  cash  nearly  three  times  as  much  as 
the  nominal  sum  advanced  to  him  by  South 
ard.  It  is  not  probable,  therefore,  that  he  de 
sired,  so  soon,  to  sell  on  any  other  condition, 
or  for  any  other  purpose  than  to  pay  the  debt 
incurred  by  Wing  in  managing  the  farm  one 
year;  nor  even  then,  for  that  purpose,  if  he 
could  conveniently  procure  the  money  by  a 
loan.  James  Southard  was  a  citizen  and  mer 
chant  of  Louisville  ;  and  was,  probably,  a 
lender  of  money  at  usurious  interest — See 
Heinshaw's  dep'n,233;  Farquar's,  244.  And 
men  of  that  cast  prefer  loaning  their  money 
at  high  interest  to  buying  and  cultivating 
farms.  Besides,  Russell  got  only  $2,000  in 
money,  or  in  means  either  entirely  or  immedi- 
tately  available,  and  which  could  have  served 


380  SUPREME  COURT,  U.  S. 


scarcely  any  other  purpose  than  that  of  paying  |  considered  doubtful  as  to  value  or  availability, 
the  farm  debts — certainly  not  that  of  an  ad- !  In  answer  to  the  8th  interrogatory,  p.  11,  he 
vantageous  investment.  This  comparatively  \  says,  p  163,  he  has  no  recollection  as  to  the  law- 
small  sum  he  could  have  borrowed  without  jyers,  and  is  silent  again  as  to  others,  thus  admit- 
doubt  or  difficulty,  almost  any  where,  by  j  ting  that  he  had  been  advised  by  'other  acquaint- 
mortgaging  his  land  as  a  security.  i  ances"  that,  if  he  could  get  the  "defeasance, 

2.  D.  R.  Southard's  answer  is  discredited  ;  which  had  not  been  recorded,  his  title  would 
by  reckless  averments  and  studied  evasions.  |be  complete."  Why  was  he  so  advised,  and 
1.  Such  averments,  p.  169;  defeasance  never  j |wl  as  he  anxious  to  get  it  in?  if  there  was 
"contemplated  or  intended  before  or  at  the  ;  UQ  mort gage? 

time  of  the  sale  and  conveyance!"  Page  158  |  The  answer  is  tiiscredited,  moreover,  by 
•'After  this  transaction  (the  conveyance)  was  ,  }  character  of  D<  R.  So^&r([.  See'  $ 
fully  completed  and  on  the  following  day,  or  i  f  Chambers,  225; 

the  day  after  that,  the  complainant  expressed  j      *'  f  »X  „   '      . 

to  said  James  that  he  thought  that  he  had  sold  I of  ^mn^',  22-65  °  *  Cr^uf n»  ^  .  ofnM0e"- 
the  farm  for  a  small  price,  and  urgently  solicit- !  ™&?*>  22  <  5  of  J1™*' ^  °/  f  *lwell,  228; 
ed  leave  to  repurchase  it!"  P.  161.  "The  price  i°/  ?haw  ib.;  of  Pope  233;  of  Stewart,  238. 
given  by  hiir [(J.  S.)  was  about  the  fair  value  j  And  such  an  answer  by  such  a  man  affords 
of  the  property!  "(although  the  same  respond-  strong  intrinsic  evidence  that  the  contract 
ent  afterwards  insured  the  dwelling  alone  at!  was,  in  fact,  intended  as  a  mere  security  for 
$7,000!)  P.  158,  "The instrument  (defeasance)  'the  amount  advanced. 

was  dated  the  day  the  deed  and  bond  were  in  i  4.  There  is  as  much  proof  as  such  a  fact  is 
order  that  the  bond  might  not  be  forfeited  j  susceptible  of,  that  Russell  has  ever  under- 
whilstthe  complainant  should  have  the  faculty  |  stood  his  contract  with  Southard  to  be  a  mort- 
of  repurchasing  the  land!"  Page  160,  (refer-  igage.  1st.  His  Bill:  2d.  His  claiming  a  right 
ring  to  the  $100  paid  in  1830)  he  says,  his  j  to  redeem,  in  the  year  1830,  when  he  could 
brother  "was  under  no  moral  or  equitable  ob-  !  have  had  no  pretence  to  such  a  right  had  he 
ligation  to  pay  it!  "  P.  163,  alluding  to  the  i  understood  the  contract  as  a  conditional  sale; 

*      .*  .  i  1      «•»    1  *^<  _  1        tTT  _  _tl  _^»_      Jl •  A- .         rv  A  ** 


two  claims  assigned  to  Russell,  D.  R.  South 
ard  says,  "Nor  was  either  of  them  regarded 
as  desperate  or  doubtful!"  (Then  why  was  J. 


And  3d.   Col.  Woolley's  deposition,  p.  247. 

And  there  is  evidence  also,  that   Southard 
was  conscious  that  it  was  Russell's  intention 


Southard  so  careful  in  providing  expressly  j  only  to  borrow  and  secure  the  debt.  1.  His 
that  Russell  took  both  claims  "without  re-  j  repeated  and  almost  incessant,  and  rather  tri- 
course,  in  any  event  whatever,  to  the  said  J.  umphant,  conversations  with  Levering  on  the 
Southard  or  his  assignee  D.  R.  Southard,  and  !  the  nice  distinction  between  a  conditional  sale 
(was)  to  take  all  risk  of  collection  on  himself,  j  and  a  mortgage,  the  difficulty  of  writing  a 
and  make  the  best  of  said  claims  he  can  (could!)'  j  contract  of  a  conditional  sale  in  such  terms  as 
3.  Evasions. — Compare  answer  2,  p.  162,  |  to  escape  the  construction  of  a  mortgage,  and 


with  question  2,  p.  10:  in  question  4,  p.  10, 
respondent  is  required  to  state  whether  the 
conveyance  was  not  in  a  form  the  complainant 
did  not  expect:  his  only  answer  to  that  is,  that 
"complainant  did  not  intimate  any  objection 
or  disappointment."  Nevertheless,  there  is  no 


the  skill  of  Worden  Pope  in  that  art,  p.  205. 
He  seams  to  have  enjoyed  an  omnipresent  sort 
of  self-gratulation  at  the  escape  he  then  thought 
he  had  made  from  a  mortgage  through  the 
ambidexterity  of  the  eulogized  lawyer. — 
Whence  this  peculiar  self-complacency  and 


denial  that  respondent  knew  or  had  reason  to  |  loquacity,  on  that  particular  hobby,  unless  he 
believe  that  the  form  was  not  such  as  com-  i  thought  he  had  defrauded  Russell  out  of  his 
plainant  had  "expected."  In  question  5,  p.  land  by  palming  on  his  necessities,  confidence 


10,  being  asked  if  he   doubted,  at  the  date  of 


and  credulity,  a  sale  in  lieu  of  a  loan?  2.  The 


the  contract,  the  repayment  within  the  time  equivokes,  falsehoods  and  evasions  already 
prescribed,  he  says,  in  effect,  that,  if  rumor  |  noticed  in  the  answer  of  D.  R.  Southard.  3. 
had  been  true,  and  if  he  had  believed  that  ru-  i  The  facts  proved  by  Dr.  Wood;  that  South- 


mor,  he  would  not  have  doubted!  Is  not  this 
strangely  evasive,  and  is  it  not  a  tacit  admission 
that  he  did  not  doubt  the  payment?  And,  then, 
can  the  court  believe  that  such  men  would, 


arc!  told  him  that  he  had  "advanced  between 
$4,000  and  $5,000  upon  that  place,  but  in  case 
he  owned  the  place,  it  would  cost  him  $10,- 
000;"  and  that  he  also  told  him,  or  said  in  his 


without  consideration,  as  a  mere  "gratutity,"  j  presence,  that  if  a  bill  pending  in  the  legisla- 
as  D.  R.  Southard  avers,  have  given  the  dc-  j  ture  for  extending  the  city  limits  should  be- 
feasance  after  having,  in  good  faith,  acquired  come  a  law,  "he  would  make  $10,000  by  it, 
the  absolute  title  to  land  worth  three  times  i  for  the  farm  he  got  from  Russel  cost  him  $10,- 
the  amount  to  be  repaid?  In  question  6,  p.  1 000,  and  the  passage  of  the  bill  would  raise  its 
11,  the  respondent  is  asked  what  he  had  told  lvalue  to  $20,000,  and,  if  he  had  it  disincum- 
others  he  would  have  taken  for  the  claims  as-  j  bored,  he  would  nottake  $20,000  for  it."  The 
signed  to  complainant  had  he  not  "made  the  abortive  effort  to  discredit  Dr.  Wood's  testi- 
lucky  hit  of  finding  me  (complainant)  pressed  inony  should  not  effect  its  credibility,  which  is 
for  money;"  answer  6,  p.  262,  "non  mi  recor-  [well  established  by  the  concurrent  testimony 
do"  as  to  part,  silence  as  to  "the  lucky  hit" —  of  the  following  persons  who  have  known  him 
thus  virtually  admitting  that  the  claims  were  long  and  intimately:  Keasy,  p.  239;  Hall  241; 


SUPREME  COURT,  U.  S. 


381 


Gregory,  241;  Elliot,  242;  Farquer,  244.— 
The  fact  that  some  persons  say  he  was  once 
intemperate,  and  sometimes,  in  conversation, 
talked  recklessly  and  extravagantly,  is  insuf 
ficient  to  destroy  or  materially  affect  his  cred 
ibility  on  oath,  when  testifying  disinterestedly 
to  facts  intrinsically  probable  and  which  are 
not  only  not  contradicted  by  any  other  witness, 
but  are  corroborated  by  other  circumstances 
and  proofs  in  the  case.  When  all  the  facts 
are  analyzed  he  is  entitled  to  credence.  He 
told  the  truth. 

5.  Dr.  Johnson,  who  attested  the  defeasance 
and  heard  the  conversation  of  the  parties  at 
that  time  concerning  its  objects,  testifies  (p. 
210)  that  "My  (his)  understanding  of  the 
contract  was  both  from  Southard  and  Russell; 
and  my  distinct  impression  is,  that  Russell  was 
to  pay  the  money  in  four  months  and  take 
back  his  farm."  This  cannot,  by  any  allow 
able  interpretation  of  the  language,  be  recon 
ciled  with  the  idea  of  an  absolute  sale  on  the 
condition  merely  of  a  privilege  to  repurchase; 
considering  the  question  he  was  answering,  the 
object  of  the  querist,  and  the  position  of  the 
witness,  his  response  imports  a  mortgage 
clearly  and  inevitably.  And,  as  he  was  se 
lected  by  the  parties  as  a  witness  of  their  con 
tract,  his  evidence  alone  ought  to  be  conclu 
sive.  If  the  defeasance  does  not,  as  written, 
authorize  the  construction  of  a  security  instead 
of  a  sale,  then  there  could  scarcely  be  a  doubt 
that  Russell's  signature  was  induced  by  mis 
take,  and  also  by  fraud  if  Southard  intended 
that  it  should  operate  as  evidence  of  a  condi 
tional  sale.  This  testimony  is  fortified  by  the 
fact  that  it  harmonises  with  the  understanding 
of  acquaintances  of  Southard  and  of  some  of 
his  family,  as  shewn  by  the  depositions  of 
Doup,  Longest  and  Hawes.  JDoup  says, 
"About  the  year  1828,  Bob  Turner,  a  friend 
and  crony,  as  I  considered  him,  of  James 
Southard,  told  me  that  Southard  had  loaned 
Russell  $5,000,  for  which  he  took  a  mortgage 
on  the  land." — p,  262.  Longest  proves  that 
Burks  was  desirous  to  buy  the  farm,  but  was 
deterred  by  the  belief  that  Russell  had  a  right 
to  redeem  it. — p.  203-4.  And  Hawes  says 
that,  about  the  year  1839,  "he  heard  some  one 
say,  that  Southard  held  said  farm  in  mortgage; 
that  Russell  was  in  difficulty,  and  when  he 
got  through  with  his  difficulties,  he  would  sue 
for  it  and  recover  it.  Afterwards,  I  asked 
Southard's  son  about  it,  and  he  told  me  so  too." 
Now,  though  the  fact  that  a  person  who  wished 
to  purchase  the  land  from  Southard,  another 
who  was  a  crony  of  J.  Southard,  and  another 
who  was  his  son,  or  the  son  of  the  defandant 
Daniel,  understood  the  contract  to  be  a  mort 
gage,  would  be  incompetent  ptr  se  to  prove  a 
mortgage — it  is  nevertheless  A  PACT  proved, 
and,  as  such,  is  admissible  and  significant  as 
a  circumstance  corroborating  other  and  more 
direct  facts.  It  would  be  rather  strange  that 
those  persons  alluded  to  in  those  three  depo 
sitions,  and  doubtless  other  persons,  should 


have  understood  the  contract  to  have  been  in 
tended  as  a  mortgage,  unless  it  had  been  so 
designed  or  understood  by  the  parties,  or  one 
of  them. 

6.  If,  as  D.  R.  Southard  avers,  (and  as  may 
be  true  from  a  fact  stated  in  Thruston's  depo 
sition  and  the  fact  that  Dr.  Johnson,  who  at 
tested  the  defeasance,  was  not  present  at  the 
execution  of  the  conveyance,)  the  defeasance 
was  not  executed  until  a  day  or  days  after  the 
conveyance — this  circumstance  alone  is  preg 
nant  with  evidence  of  a  mortgage.  It  is 
abundantly  proved,  that  J.  Southard  was  a 
sharp  trader,  and  signally  tenacious  of  any 
advantage  he  had  obtained  by  a  bargain. — 
See  Harrison,  p.  227;  Turner,  p.  225;  Kellar, 

L224;  Baker,  p.  222;  Marders,  p.  220,  &c., 
.  If  then,  for  the  paltry  consideration  he 
had  advanced,  he  had  fairly  bought  the  farm, 
and  had  obtained  an  indefeasable  conveyance 
of  the  title  without  any  understanding  that  he 
was  to  hold  it  in  trust  as  a  security,  could  it 
be  believed  that  he  would,  afterwards,  volun 
tarily,  and  without  any  consideration,  give  to  his 
vendor  an  obligation  to  re-convey  on  no  other 
condition  than  the  restitution  of  what  he  had 
paid  him?  And,  if  Russell  had  negotiated  and 
understood  that  he  had,  by  his  conveyance,  con 
summated  an  irrevocable  sale,  why  did  he  so 
suddenly  change  and  request  a  new  contract  giv 
ing  him  the  privilege  of  repurchasing?  Why  did 
he  not  think  of  this  and  provide  for  it  before  he 
had  delivered  the  deed?  The  only  rational 
answers  to  these  questions  imply,  with  a  cer- 
tianty  almost  indisputable,  that  Southard  ob 
tained  the  conveyance  on  trust,  and  was  con 
triving  to  evade  any  written  evidence  of  it; 
that  therefore,  Russell,  apprehending  fraud, 
demanded  a  memorial  of  defeasance,  and  that, 
when  thus  freshly  and  importunately  pursued, 
Southard  was  bound  to  surrender  a  surrepti 
tious  advantage;  and  that,  still  contemplating 
the  same  fraudulent  purpose,  he  had  such  a 
writing  prepared  as,  in  the  judgment  of  his 
lawyer,  would  import  a  resale  only,  and  on 
terms  which  he  thought  Russell  could  never 
fulfill.  And  this  deduction  is  fortified  by 
D.  R.  Southard's  reckless  efforts  to  show 
that  there  was  no  consideration  for  the 
defeasance;  for  why,  we  reiterate,  was  it 
deemed  by  him  so  material  to  falsify  as  to 
the  consideration  unless  he  knew  that 
Russell  desired  the  defeasance  as  evidence 
of  a  mortgage,  and  so  expected  it  to  operate? 
For,  if  the  parties  intended  it  only  as  reserving 
a  conditional  right  of  repurchase,  a  valuable 
consideration  or  no  consideration  for  it  was 
not  material  after  the  prescribed  time  for  pay 
ment  had  elapsed,  and  Southard's  title  had 
become  indefeasable.  Whatever  Russell 
might  have  thought  of  the  terms  of  the  defeas 
ance,  as  it  was  all  he  could  then  get  he  was 
bound  to  take  it.  Southard,  by  obtaining  a 
conveyance  absolute  on  its  face,  had  placed 
Russell  in  vinculis,  which  left  him  no  alterna 
tive  but  to  take  the  memorial  of  defeasance 


382 


SUPREME  COURT,  U.  S. 


as  offered  to  him  or  have  none  at  all.     All 
this  D.  R.  Southard  knew,  and  therefore  he 
has  subjected  himself  to  the  imputation  of  per 
jury  or  stultification  in  his  elaborate  and  suici 
dal  effort  to  make  the  defeasance  'gratuitous " 

7.  The  last  extraneous  fact  we  shall  here 
notice  is  the  glaring  inadequacy  of  the  consid 
eration,  which  we  consider,  in  itself  alone, 
conclusive. 

That  the  farm  was,  at  the  date  of  Russell's 
conveyance,  worth  at  least  three  times  as 
much  as  the  value  of  what  he  received  from 
Southard  is,  we  think,  sufficiently  established. 
All  that  he  received  could  not  have  been 
worth  more  than  $4229.81 — and  was  probably 
of  much  less  value,  perhaps  not  equal  to  $4000 
— the  claims  assigned,  amounting  nominally 
to  $3829.81,  were  not  of  that  value;  if  they 
had  been,  they  would  not  have  been  assigned 
in  the  manner  they  were — as  a  mere  "chance," 
without  recourse  on  either  of  the  Southards. 
We  have  no  means  of  knowing  either,  whether 
they  Avere  founded  on  legal  and  binding  con 
siderations,  or  whether  the  securities  were 
then  deemed  sufficient  and  availing — and  we 
do  know  that  Russell  incurred  the  trouble,  ex 
pense,  and  hazards  of  protracted  litigations  for 
enforcing  them,  and  did  not  finally  succeed,  to 
the  whole  extent,  until  the  fall  of  the  year  1830. 

And  that  the  farm  was  worth  more  than 
$12,000,  probably  at  least  $15,000,  in  Sep 
tember  1827 — is  inferrible  1st.,  from  the  Dep 
ositions  of  Talbot,  page  .199 — of  Doup,  page 
20 1 — of  Wood,  p.  214 — of  Berkiumyer,  page 
235 — of  Richardson,  page  236 — Howard,  page 
237 — Marders  p.  220 — whose  estimates  vi 
brate  between  about  $9,000  and  $31,000 — 2d. 
From  the  price  offered  by  Talbot  p.  199 — he 
considered  a  purchase  a  speculation  at  $10,- 
000  in  cash. — 3d.  From  its  quality,  proxim 
ity  to  Louisville,  and  the  cost  and  condition 
of  the  improvements — the  house  alone  costing 
$12,000  and  being  insured  at  $7,000— see 
Stuart's  deposition  p.  239 — 4th.  From  the 
fact  that  J.  Southard  said  (to  make  a  case) 
that  the  farm  had  cost  him  $10,000,  and,  at 
another  time,  that  if  he  ever  owned  it,  the 
cost  would  be  $1 0,000 — and  from  the  fact  that, 
only  about  16  months  before  Russell's  convey 
ance,  he  paid  nearly  $14,000  for  the  farm,  and 
land  was  improving  in  price  in  September, 
1827,  when  he  conveyed  the 'land  to  Southard 
— see  deposition  of  Howard  p.  238.  On  these 
facts  we  may  safely  assume  the  minimum  val 
ue  of  the  'advance'  by  Southard. 

Would  Russell  have  sold  for  such  a  price? 
"Inadequacy  of  price" — "the  conduct  of  the 
parties" — "the  necessities  of  the  party  con 
veying" — are  admissible  and  important,  on 
the  question  of  a  mortgage  or  conditional  sale. 
But  gross  inadequacy  is  the  most  decisive. 
Oldham  vs.  Hally  2.  J.  J.  Marshall  115— 
Erdrington  vs.  Harper  supra — Wilcoxo's 
Heirs  vs.  Morris  1.  Murph.  117—2.  Call  su 
pra — 1.  Pow.  on  mortgages — 5-6-&C.  Con- 
way  s's  Ex'r  TS  — Alexander — supra: — in  the 


last  case  the  Supreme  Court  said  that  gross 
inadequacy  was  very  cogent  evidence  of  a 
mortgage;  and  3  of  the  then  7  members  of 
this  court,  said  it  would,  per  se,  be  irresista- 
ble."  How  can  it  be  resisted  when,  as  in  the 
case  now  before  this  coui't,  it  is  aided  by  oth 
er  considerations  so  various  and  persuasive  as 
these  noticed  in  the  foregoing  view,  which 
we  here  close  as  to  the  1st.  position — that  the 
contract  was  for  security  and  not  sale? 

II.  The  only  act  which  could  be  tortured 
into  a  relinquishment  of  the  equity  of  redemp 
tion  is  the  receipt  procured  from  Russell  on 
the  6th.  of  October,  1830.  But  that  is  entitled 
to  no  such  effect,  for  three  reasons: 

1st.  It  was  neither  intended  nor  should  be 
construed  as  a  release  of  the  equity  of  redemp 
tion.  The  nominal  amount  of  the  claims  as 
signed  to  Russell,  was  $2829. 81|;  which  ad 
ded  to  $2000  advanced  by  Southard,  made  the 
entire  aggregate  of  the  consideration  $4829.- 
81^- only.  But  through  inadvertance,  the  par 
ties  had  erroneously  estimated  the  assigned 
claims  at  $2929.81^,  and  therefore  the  con 
veyance  recited  the  latter  amount  as  the  con 
sideration — Russell  believed  that  he  was  get 
ting,  and  Southard  (if  guilty  of  no  fraud) 
supposed  that  he  was  advancing  $4929. 8 U; 
and  consequently  the  defeasance  required  the 
repayment  by  Russell  of  $4929. 8H  cents  as 
indispensable  to  his  right  to  a  reconveyance. 
Then,  as  Russell  had  not,  even  nominally,  re 
ceived  more  than  $4828. 81|-  cents,  he  had  an 
indisputable  right  either  to  demand  the  pay 
ment  of  $100  with  interest,  or  the  privilege  of 
redeeming  on  the  repayment  of  $4829.81^  in 
stead  of  $4929. 8 U  as  erroneously  stipulated. 
Southard — most  recklessly  and  fraudulently — 
denied  both  his  right  to  the  $100  and  his  equity 
of  redemption.  Moreover,  he  was  not  then 
able  to  redeem,  and  was  distressed  for  money 
— see  Southard's  an'r  page.  164 — and  the 
dep'u  of  Johnson  p.  212,  and  of  Woolly,  page 
246 — and  of  Thruston. 

Under  these  circumstances  the  utmost  he 
could  expect  at  the  time,  was  the  payment  of 
the  $100 — and  which  sum  alone,  and  without 
any  interest,  after  much  impudent  and  evasive 
trifling  by  the  Southards,  was  finally  paid  to 
trim.  It  was  this  transaction,  and  this  onlv, 
which  the  receipt  of  October  6th,  1830,  was 
intended  to  acknowledge  and  certify;  and, 
though  fraudulently  designed  by  the  South 
ards,  it  expressly  recites  that  the  sum  re 
ceived  ($100)  made  "the  two  debts  of  Brown, 
and  Johnson,  with  the  $2000,  amount  to  the 
sum  of  $4929.81^" — the  precise  considera 
tion  acknowledged  in  Russell's  conveyance 
and  required  by  the  defeasance  to  be  repaid 
3y  him.  It  is  undeniable  that  the  $100  were 
paid  and  received  for  no  other  purpose  than 
that  thus  shewn,  and  just  quoted.  And  there- 
bre,  the  cunning  conclusion  of  the  receipt, 
;hat  "this  is  in  full  of  all  demands  upon  J. 
Southard,"  should  be  interpreted  by  the  court 
as  intended  and  understood  by  Russell,  only 


SUPEEMB  COURT,  U.  S. 


383 


to  acquit  Southard  of  all  pecuniary  demands, 
or  rather  of  all  such  demands  on  account  of 
the  consideration  agreed  to  be  advanced,  or  as 
advanced  by  Southard.  It  was  manifestly  not 
intended  or  understood  by  him,  as  releasing 
his  equity  of  redemption — nor  can  it,  as  we 
respectfully  insist,  be  consistently  so  construed 
by  the  court. 

2.  Had  the  receipt  been  intended  as  a  re 
lease  of  the  equity  of  redemption,  it  is  ineffec 
tual  for  want  of  any  consideration.     It  is  per 
fectly  ridiculous  to  pretend,  as  D.  R.  South 
ard  does  in  his  answer,  that  the  mistake  in 
the  computation  was  that  of  Worclon  Pope, 
and  that  the  parties  themselves  did  not  esti 
mate  the  claims  on  Brown  and  Johnson  at  any 
precise  amount.     Russell  must,  as  a  matter  of 
course,  be  presumed  to  have  understood  that 
he  was  receiving,  and  Southard  must  be  pre 
sumed  to  have  understood  that  he  was  advan 
cing  a  certain  and  ascertained  sum.     Both  of 
them  must  have    estimated,  at    some   fixed 
amount,   the  aggregate   of  the  assigned   de 
mands;  and  must  also  have  concurred  in  the 
same  amount.     And  the  conveyance  and  the 
defeasance    show    what    that    conventional 
amount  was.      Besides,   as    the     defeasance 
required  Russell  to   pay  $4929.8  Ij  cents  be 
fore  he  could  redeem,  and  as  the  sum  he  had 
received  could  not  exceed  $4829.8 1|-,  South 
ard  still  owed  him  $100.     The  conclusion  is, 
therefore,  inevitable  that  the  payment  of  $100 
in  October,  1840,  was  received  in  satisfaction 
of  a  debt,  and  was  no  consideration  for  a  re 
lease  of   the    equity  of   redemption.      And 
there  is  no  pretence  that  there  was  any  other 
consideration. 

3.  But  had  the  $100  been  a  new  and  an 
actual  consideration,  and  had  Russell,  on  the 
receipt  of  it,  agreed  to  relinquish  his  equity  of 
redemption,  not  only  was  the   consideration 
insufficient,  but  the   agreement  was  extorted 
by  duress  and  fraud.     Although  a  mortgagee 
may  purchase  the  equity  of  redemption,  he 
can  never  do   so  availably  and  irrevocably, 
unless  he  can  show  that  he  did  it  fairly  and 
for  a  full  and  commensurable  consideration. 
A  contract  by  a  mortgagee  for  purchasing 
from  the  mortgagor  his  equity  of  redemption — 
like  similar  purchases  by  others,  maintaining 
a  relation  of  trust  or  dominion  as  to  the  ven 
dor— -is  constructively  fraudulent;  that  is — as 
the  best  means  of  preventing  fraud,  for  the 
perpetration  of  which  there  may  be  peculiar 
temptations  and  facilities  in  all  such  cases — 
the  law  will  assume  fraud  until  the  contrary 
shall  be  made    manifest  by  the    purchaser. 
And  it  is  well  settled  that,  before  a  mortga 
gee  will  be  permitted  to  bar  the  equity  of  re 
demption  by  an  alleged  purchase  of  it  from 
the  mortgagor,  he  must  prove  that  the  contract 
was  unquestionably   fair,  and  upon  an  ade 
quate  consideration.    "The  mortgagee  may  be 
come  the  purchaser  of  the  equity  of  redemp 
tion  if  he  does  not  make  use  of  his  incum- 
brance  to  influence  the  mortgagor  to  part  with 


the  estate  for  less  than  its  real  value.  If, 
however,  the  mortgagee  does  purchase  the 
equity  of  redemption,  he  should  always  pay 
a  valuable,  indeed  an  adequate  consideration 
for  it." — Powell  on  Mort.  122,  n.  N.  This  is 
the  true  doctrine,  recognized  by  a  multitude 
of  concurrent  and  unopposed  authorities.  Its 
application  to  the  facts  of  this  case  is  unan 
swerably  decisive.  Besides,  the  relinquish- 
ment,  if  intended  to  be  made  by  Russell,  was 
void  for  duress  and  fraud.  Was  he  not  pe 
culiarly  in  the  power  of  Southard?  Was  not 
that  power  fraudulently  exerted?  Did  not 
Southard  "make  use  of  his  incumbrance  (and 
a  most  foul  use)  to  influence  the  mortgagor  to 
part  Avith  his  estate  for  less  than  its  value," 
even  for  nothing?  But,  although  a  surrender 
of  the  document  of  defeasance  was  fraudu 
lently  coerced,  the  foregoing,  facts  conduce  to 
show  that  Russell  did  not  understand  that  he 
thereby  released  his  equity  of  redemption. 
And  this  deduction  is  fortified  by  the  fact  that, 
within  one  or  two  years  after  the  date  of  the 
receipt,  he  came  to  Louisville  to  look  "after 
his  rights  there" — and  then  undoubtedly 
claimed  a  right  to  redeem — Woolley's  deposi 
tion,  247. 

The  conclusion  seems  to  be  irresistabfe  that, 
by  the  arrangement  of  October,  1830,  Russell 
made  no  intentional  or  binding  relinquishment 
of  his  equity  of  redemption.  But  the  conduct 
of  the  Southards  in  procuring  the  possession 
of  the  document  of  defeasance  and  writing 
the  receipt  of  October  6th,  1830,  and  the  ex 
traordinary  character  and  sinister  purpose  of 
D.  R.  Southard's  answer  to  those  matters,  re 
flect  a  flood  of  new  light  on  the  original  con 
tract,  and  afford  conclusive  proof  of  the  usury 
and  fraud  imputed  to  J.  Southard  and  his 
brother  and  coadjutor,  D.  R.  Southard,  the 
appellee.  And  here  too,  we  find  a  retro-ac 
tive  auxiliary  to  the  extraneous  considera 
tions  urged  in  another  place  to  show  that  the 
original  contract  was  a  mortgage. 

III.  No  statute  of  limitations, proprio  vigore, 
applies  to  suits  in  equity.  But  as  "equity 
follows  the  law" — in  its  spirit  and  reason — 
and  as  it  is  proper  that  there  should  be  some 
fixed  and  uniform  period  for  limiting  bills  in 
chancery  as  well  as  common  law  actions,  courts 
of  equity  have  voluntarily  adopted  the  statute 
of  limitations  in  all  cases  of  concurrent  juris- 
tion  to  operate  as  a  statutory  bar,  excepting 
only  that,  in  cases  of  fraud  and  mistake,  time 
is  computed  from  the  discovery  only  or  from 
the  time  when,  by  reasonable  diligence,  it 
ought  to  have  been  made.  Cases  of  exclusive 
jurisdiction  in  equity  are  of  two  classes — the 
first  class  embracing  all  cases  in  which,  if  rem 
ediable  by  an  action,  the  statute  of  limitations 
would  operate  as  a  bar;  and  the  second  class, 
comprehending  all  those  cases  in  which  the 
remedy  at  law,  if  there  had  been  any,  would 
not  come  within  the  operation  of  any  statutory 
limitation.  The  first  class  may  be  illustrated 
by  an  equitable  right  to  land  by  an  entry  or 


384 


SUPREME  COURT  U.  S. 


warrant  only,  without  a  grant,  or  consummated 
only  by  a  junior  patent,  the  legal  title  to  the 
same  land  having  been  previously  granted  to 
an  adversary  claimant.  In  that  case,  the  rem 
edy  against  the  elder  and  the  more  perfect 
title  will  be  exclusively  in  a  court  of  equity. 
But  with  that  exception,  the  case  would  be 
altogether  analogous  to  an  action  of  ejectment 
for  the  same  land  between  the  same  parties; 
and,  consequently,  if  the  defendant  had  been 
in  continued  possession  twenty  years,  the 
statute  of  limitation  might  bar  the  bill  in 
chancery  precisely  as  it  might  have  barred  an 
ejectment,  had  that  been  the  proper  remedy 
instead  of  the  suit  in  equity »  In  such  a  case 
the  statute  would  operate  by  analogy.  But  in 
the  second  class  of  cases  of  exclusive  juris 
diction  in  equity,  which  may  be  illustrated  by 
trusts,  there  may  be  no  such  analogy.  The 
possession  of  the  Trustee  will  not  be  presumed 
to  have  been  adverse  to  the  right  of  the  bene 
ficial  owner;  and  until  it  had  been  tortious  or 
adverse  in  fact,  and  had  so  continued  for 
twenty  years,  a  legal  remedy,  if  any  such  had 
been  maintainable,  would  not  have  been 
barred  by  the  lapse  of  time.  Of  course,  un 
der  the  same  circumstances,  time  would  not 
bar  the  suit  in  equity.  But,  even  in  that  case, 
lapse  of  time,  though  not  a  peremptory  statu 
tory  bar,  might  be  prima  facie  a  presumptive 
bar.  Feeling  that,  for  stability  and  uniformi 
ty,  legal  presumptions  arising  from  mere  lapse 
of  time  should  depend  on  some  fixed  period, 
and  deeming  twenty  years  most  fitting,  be 
cause  the  legislative  department  had  selected 
that  period  as  proper  for  barring  rights  of  en 
try,  and  also  because,  within  about  that  time, 
loss  of  documents  and  death  of  witnesses 
might  be  reasonably  presumed — Judges  and 
Jurists,  wherever  the  common  law  prevails, 
have  finally  adopted  the  lapse  of  twenty  years 
(nothing  else  appearing  to  counteract  it)  as  the 
period  of  legal  presumption  from  mere  time. 
And  this  presumption  applies  equally  to  every 
judicial  forum  and  to  all  forms  of  suit.  Thus, 
after  a  bond  had  been  due  20  years,  the  law 
will  presume  payment,  unless  some  other 
fact  inconsistent  with  that  presumption  shall 
be  proved;  and  consequently  thus  also,  if  a 
mortgagor  had  continued  in  possession  twenty 
years  after  the  day  of  forfeiture,  the  law  ^ould 
presume  that  he  had  paid  the  debt  punctually, 
and  that  his  possession  had  been  in  his  own 
right  as  absolute  owner,  and  therefore  adverse 
to  the  claim  of  the  mortgagee — and,  for  the 
like  reason,  if  the  mortgagee  had  been  in  posses 
sion  twenty  years  after  the  debt  became  due, 
there  would  be  a  resulting  presumption  of  law, 
that  the  equity  of  redemption  had  been  re 
leased.  But,  in  such  cases,  as  the  bar  would 
be  merely  presumptive,  it  might  be  defeated  by 
proof  of  a  recognition  of  the  subsistence  of  the 
debt  or  of  the  mortgage,  express  or  implied,  at 
any  time  within  the  twenty  years;  for  not  one 
day  short  of  full  twenty  pears,  uncorroborated 
by  any  other  and  fortifying  circumstance,  will 
be  sufficient  to  raise  the  legal  presumption 
from  mere  lapse  of  time.  These  doctrines  we 
consider  too  well  settled  by  reason  and  modern 


authorites  to  require  either  elaboration  or  ci 
tation  of  adjudged  cases  for  ensuring  the  re 
cognition  of  their  soundness  by  this  court. 

This  case  belongs  to  the  last  class  of  cases 
exclusively  cognizable  in  a  cour£  of  equity; 
and  therefore  is  not  affected  by  any  statutory 
bar.  "We  insist  also,  that  it  is  not  concluded 
by  any  presumptive  bar.  Southard's  posses 
sion  could  not  be  presumed  adverse  or  of  any 
other  than  the  amicable  character  of  that 
of  a  faithful  mortgagee,  before  the  6th  of  Oc 
tober,  1830,  from  which  time  we  might  per 
haps  infer  that  his  possession  was  in  fact 
wrongfully  in  his  own  usurped  claim  of  abso 
lute  owner.  Only  about  17  years  had  elapsed 
between  that  time  and  the  commencement  of 
this  suit.  And,  even  from  the  end  of  four 
months  succeeding  the  date  of  the  defeasance, 
until  the  institution  of  the  suit,  20  years  had 
not  elapsed. 

Then  it  is  manifest  that  the  equity  of  re 
demption  is  not  lost  or  defeated  by  mere  lapse 
of  time. 

Nor  is  there  any  auxiliary  fact  which,  when 
combined  with  the  running  of  time,  would  be 
sufficient  to  create  a  rational  presumption,  or 
presumplion,  in  fact  that  the  equity  of  re 
demption  had  been  either  abandoned,  re 
linquished,  or  overruled  by  supervening  and 
preponderating  equities  in  Southard. 

There  is  enough  in  the  record  to  shew,  as 
already  suggested,  that  the  fraudulent  and 
oppressive  transaction  of  October,  1830,  was 
not  intended  by  Russell  at  that  time,  nor  un 
derstood  by  him  since  as  a  relinquishment  of 
his  right  to  redeem.  And  Southard  does  not 
pretend  that  it  was  ever  released  by  any  sub 
sequent  act.  He  even  denies  that  it  ever  exis 
ted.  And  moreover,  some  facts  before  allu 
ded  to,  indicate  a  recognition  of  a  subsisting 
mortgage,  since  the  year  1830,  and  oral  asser 
tions  of  a  right  to  redeem  by  Russell  since  that 
memorable  year.  We  can  perceive  no  fact  co 
operating  with  lapse  of  time  to  establish  a 
presumptive  Bar.  And  the  mere  lapse  of  17 
years,  or  even  1 9  years  and  8  months,  is  unques 
tionably  insufficient.  Besides,  so  far  as  it  might 
operate  per  se,  (though,  in  that  way  ineffect 
ual)  as  one  fact  tending  to  the  inference  of 
release,  it  is  rebutted  by  the  destitute  and 
helpless  condition  of  the  mortgagor.  A  victim 
of  the  avarice  and  fraud  of  the  Southards,  he 
has  been  unable  to  redeem  by  payment — and 
has  been  lulled  by  the  hope  that,  when  they 
should  become  gorged  with  the  profits  of  the 
farm,  they  would  finally  yield  it  up  to  him  on 
equitable  terms,  without  a  suit,  which  he,  a 
destitute  stranger,  had  neither  the  courage, 
nor  means  to  prosecute  against  such  fearful 
odds,  until  1847,  when,  all  hope  of  voluntary 
justice  expired  and  he  began  to  apprehend 
that  longer  delay  might  arm  his  adversary 
with  a  legal  weapon  of  successful  resistance. 

JSTor  are  there  any  countervailing  equities. 
D.  R.  Southard  is  a  volunteer;  He  had  also 
full  notice  of  the  facts,  and  counselled  and  co 
operated,  throughout,  with  J.  Southard.  He 
participated  in  every  act  of  fraud  and  is  re- 
e  as  one  of  the  guilty  actors.  There 


SUPREME  COURT,  U.  S. 


is  no  danger  that  a  redemption  now  will  result 
in  any  injustice  to  him.  He  has  made  no  val 
uable  improvements  in  faith  of  ownership. 
He  could  complain  of  no  loss  by  any  wrongful 
act  or  deceptive  omission  by  Russell.  And, 
if  any  unreasonable  disappointment  or  loss 
should  result  to  him  from  a  decretal  redemp 
tion,  his  long  occupancy  of  the  farm  and  en 
joyment  of  the  profits,  would  alone  afford  am 
ple  means  for  his  indemnity,  if  he  should  be 
entitld  to  retribution.  Such  enormous  fraud 
and  oppression,  as  he  and  his  testator  inflicted 
on  an  unfortunate  and  distressed  fellow  citizen, 
should  not  be  consecrated  by  the  lapse  of 
seventeen  years.  They  cannot  be  thus 
legalized  by  Kentucky  Justice  or  American 
Jurisprudence.  The  right  to  redeem  has  not 
been  relinquished,  forfeited  or  lost.  This  we 
think,  we  have  a  right  to  conclude  with  confi 
dence. 

The  extent  of  the  relief  which  would  be 
proper,  in  the  event  of  a  reversal  of  the  decree 
of  the  circuit  court,  may  be  worthy  of  some 
supplemental  notice. 

1.  Southard  should   be  charged  with  the 
reasonable  profits  of  the  farm,  subject  to  a 
credit  for  amelioration,  if  any.     He  may  be 
entitled  to  $4,829. 81|-,  with  BIX  per  cent,  in 
terest  thereon,  from  the  date  of  the  contract. 
And  we  presume  to  suggest  that  he  may  be 
liable  for  $7,000,  for  which  he  insured  the 
house,  if  he  received  that  sum  under  his  poli 
cy;  or  for  whatever  he  did  receive,  if  he  re 
ceived  any  thing.     But,  as  the  facts  necessary 
for  a  final  adjustment  of  this  matter  have  not 
been  effectually  litigated,  we  would  suggest 
the  propriety  of  submitting  it  to  ulterior  in 
vestigation  on  the  return  of  the  case,  if  it  shall 
be  remanded  for  a  final  decree  for  relief. 

2.  The  lein  claimed  by  the  heirs  of  Burks 
ought  to  be  disregarded.     It  is  but  the  renew 
al  of  a  mortgage  taken  by  himself  as  an  addi 
tional  security  for  the   price  of  lots  sold  by 
him,  and  on  which  also  he  reserved  a  lien. 
That  lien  on  lots  should  be  presumed  to  be 
sufficient;  and  moreover,  Burks  had   notice, 

49 


actual  or  constructive,  of  Russell's  pre-exist 
ing  equity — see  deposition  of  Longest,  204. 

3.  Nor  can  Tompkins  be  entitled  to  the 
protection  claimed  by  him  as  a  bonafide  pur 
chaser  without  notice.  Southard  himself  says, 
as  to  that  matter,  only  that  he  had  conveyed 
to  Tompkins.  He  does  not  intimate  that  he 
sold  to  him  for  a  valuable  consideration. 
Tompkins  says  that  he  bought  31  acres  for 
$3,500,  and  had  paid  $1,500 of  that  price.  If 
all  that  be  true,  the  actual  price  was  about 
$  1 1 2  an  acre  for  land  proved  to  be  worth  $250. 
Tompkius  is  the  son-in-law  of  D.  R.  Southard. 
It  is  quite  likely  that  the  conveyance  was  an 
advancement.  But  were  it  a  sale,  Tompkins' 
position  and  relationship  towards  Southard 
might  imply  notice  of  Russell's  equity.  But, 
however  all  this  may  be,  Tompkins,  having 
paid  only  a  portion  of  the  consideration,  is  not 
in  the  legal  sense,  a  "purchaser,"  without 
notice.  Both  the  conveyance  of  the  legal  title 
and  the  payment  of  the  consideration  are  ne 
cessary  to  constitute  such  a  purchaser. — 
Hardingham  vs.  Nichols,  3  Atk.,  304;  Sug- 
don  on  Venders,  302;  Frost  vs.  Beckham,  1 
Johnson's  Ch'y.  n.  288;  Lewis  vs.  Palmer,  7, 
ib.  65;  2d  vol.'  Mad.  Ch'y.  255;  2d  vol.  Sto 
ry's  Equity,  Sec.  1502.  So  far  as  Tompkins 
had  not  paid  before  the  commencement  of  this 
suit,  (being  a  lonafide  buyer  in  fact,)  he  would 
hold  the  legal  title  under  an  implied  trust  for 
Russell.  And  should  he,  so  far  as  he  had  pre 
viously  paid,  be  entitled  to  protection  pro  tanto, 
there  would  be  no  difficulty  in  securing  to  him 
a  just  measure  of  indemnity.  We  desire 
nothing  but  justice  either  as  to  the  redemption 
or  the  extent  and  manner  of  it. 

We  hope  for  the  rescue  of  our  long  suf 
fering  client  at  last,  though  late,  by  the  decree 
of  this  court.  And  reposing  on  this  trust,  we 
here  conclude,  without  further  amplification, 
adding  only  that,  whatever  may  be  the  ulti 
mate  decision,  we  have  a  right  to  expect  that 
it  will,  in  all  respects,  harmonise  with  the 
Lex  loei  contractus — which  is  the  modern  code 
of  Eequitable  Jurisprudence  as  recognised 
and  established  in  Kentucky. 


SUPREME  COURT  U,   8. 


SOUTHARD 
RUSSELL 


Appellee's  Brief. 


This  Court  having,  at  its  last  term,  in  the 
case  of  Russell  vs.  Southard  aod  others,  de 
cided  that  a  conveyance  of  land  near  Louis- 
vills,  Ky.,  by  Russell  to  Southard,  was  a 
mortgage,  and  that  the  mortgagor  might  re 
deem  on  terms  prescribed  in  the  opinion, 
Southard  petitioned  for  a  re-hearing — and  his 
petition  being  overruled,  the  Circuit  Court,  in 
obedience  to  the  mandate,  entered  a  decree  for 
redemption,  and  continued  the  case  for  further 
as  to  some  of  the  defendants. 
Southard  filed  in  that  Court  a  bill 
of  Review,  praying  for  a  review,  or  a  change 
of  the  decree  for  redemption,  on  the  allegation 
that,  since  the  date  of  the  original  decree 
by  the  Circuit  Court,  he  had  made  the  fol 
lowing  discoveries  : 


preparation 
Whereupon 


1. 


That  the  attorney  (Stewart)  who  brought 

11?C      Glllf       <*    innn*nllxr         -fVo  n  A  11 1  /-*vA-f1  tr          -*.,.! 


Russell's  suit  "  illegally,  fraudulently,  and  I  might  be  betweei 
corruptly  obtained,  by  direct  bribery,  the  tes- '  sale  of  the  farm,1 
timony  and  deposition  of  Peter  Wood,  a  ma-  therefor." 


extract  from  a  letter  from  G.  C.  Russell 
W.  Wing,  dated  Alexandria,  19th  December, 
1827,  which  is  filed  herewith.  This  extract 
is  entirely  in  the  hand  writing  of  W.  O.  Payne, 
who  died  long  before  the  institution  of  this 
suit,  and  certified  over  his  signature  to  be 
truly  executed,  on  the  16th  January,  1828." 

8.  That  he  "  has  seen  what  purports  to  be 
an  official  extract  from  the  schedule  of  estate 
surrendered  by  Russell,  under  oath,  when  he 
took  the  benefit  of  the  insolvent  act  of  Alaba 
ma,  one  item  of  which  is  a  debt  against  John 
Floyd  for  $8,000.  This  together  with  the  ex 
tract  of  the  letter  from  Russell  to  Winn,  in 
duces  the  'belief  that  the  sale  from  Floyd  to 
Russell  was*  coupled  with  some  sort  of  con 
tract  between  them,  which  authorized  Russell 
to  look  to  Floyd  for  whatever  difference  there 
ween  the  price  obtained  on  a  re- 
and  that  which  he  paid  Floyd 


terial  witness  in  the  case,  and  upon  faith  in 
whose  statements  the  Supreme  Court  was  in 
duced  to  render  its  decision." 

2.  That  the  contract  under  which  Stewart 
brought  the  suit  was  charnpartous,  entitling 
Stewart  to  one-half  of  the  land  in  the  event 
of  success. 

3.  That  "just  before  the  sale  of  the  farm 
to  James  Southard,  it  was  offered  by  Russell 
to  George  Hancock  and  the  late  Mrs.  Caroline 
Preston  for  the  price  of  $5,000,  and  he  was 
urgent  with    each    of    them   to  buv  at  that 
price." 

4.  That  shortly  previous  to  the  sale  to  J. 
Southard,  the  farm  was  advertised  and  offered 
for  sale  by  Russell  at  auction,  and  not  sold  for 
want  of  bidders — though  your  orator  has  "some 


imperfect   recollectio) 
fact 


of  suck  having  been  the 


5.  That   Talbot   had  sold,  for  only  about 
$4,000,  property  in  Huntsville,  which,  at  the 
estimate  of  $1 0,000,  he  testified,  in  the  ori 
ginal  suit,  he  had  offered  Russell  for  the  land 
afterwards  conveyed  to  Southard. 

6.  That  James  C.  Johnson,  a  witness  in  the 
original  case,  "  will  prove  that  the  Supreme 
Court   has   entirely  misconceived   or  miscon 
strued  what  he  intended  to  say  in  his  deposi 
tion,  as  will  appear  by  his  affidavit  filed  here 
with," 

7.  That  "he  has  found  among  the  papers 
of  J.  Southard  what  purports  to  be  a  written 


Such  is  the  anatomy  of  the  Bill  of  Review, 
which,  with  the  leave  of  the  Circuit  Court, 
Southard  filed.  Russell,  in  his  answer  to  that 
bill,  denies  that  the  allegations  are  sufficient 
for  maintaining  a  Bill  of  Review — denies 
champarty,  and  shows  that,  by  his  contract 
with  Stewart  the  latter  was  to  have  a  contin 
gent  fee  of  one-half  of  the  value  of  the  land 
redeemed — alleges  that  there  was  no  specific 
agreement  as  to  the  amount  of  the  fee  until 
after  the  suit  was  brought — that  there  was  no 
understanding  or  purpose  that  Stewart  should 
have  any  interest  in  the  land  until  after  this 
Court  decided  the  case,  when,  at  the  instance 
of  Henry  Clay,  one  of  his  counsel  here,  he 
conveyed  to  Stewart  half  the  land  for  securing 
his  own  fee,  and  the  fees  also  of  Mr.  Clay  and 
of  several  others  of  his  counsel  in  this  Court 
and  in  the  Court  below — denies,  that  any  cor 
rupt  influence  was  exercised  in  procuring  Dr. 
Peter  Wood's  testimony — avers  that  his  testi 
mony  was  strictly  and  wholly  true — states 
that,  when  he  visited  Kentucky  in  the  Fall  of 
1827,  his  manager,  Wing,  presented  to  him  a 
list  of  debts'  to  a  large  amount,  incurred  by 
his  (R.'s)  agent,  among  which  was  a  debt  to 
Wood  and  another  to  Dr.  Smith — that  when 
he  brought  his  suit,  he  gave  Stewart  a  memo 
randum  of  witnesses,  of  whom  Wood  was  one, 
and,  being  informed  by  Stewart  that  Wood 
and  Smith  claimed  payment  of  their  said 
debts,  and  that  he  had  presented  to  him  by 


SUPREME  COURT  U.  S. 


387 


Wood  a  bill  for  medical  services  and  borrowed 
money,  authenticated  by  Wing's  endorsement, 
he  authorized  Stewart  to  give  a  note  for  it, 


by  an  original  bill  in  the  nature  of  a  Bill  of 
Review. 
A  Bill  of  Review  and  a  bill  for  a  new  trial 


which  he  afterwards  understood  Stewart  had  j  of  an  action  depend  on  the  same  principles, 
done,  for  $280 — and  denies  that  there  was  any  i  and  are  governed  by  analagous  rules  of  prac- 

-  **"-'*  --"•-  tice;  and  neither  of  them,  as  we  insist,  can  be 
maintained  on  the  extraneous  ground  of  a 
discovery  of  new  testimony,  unless  the  corn- 


other  motive  or  consideration  for  that  note 
than  a  desire  to  satisfy  an  honest  debt — denies 
that  the  decree  of  the  Court  would  have  been 


otherwise  than  it  was  without  Wood's  testimo-   plaining  party  had  been  vigilant  in  the  pre- 
ny — insists  that,  as  Southard  had,  in  the  ori- 1  paration  of  the  original  suit,  and  could  not,  by 


gmal  case,  endeavored  to  impeach  Wood,  and 
nad,  in  his  petition  for  a  re-hearing  in  this 
Court,  said  that  he  had  always  suspected  that 
he  had  been  suborned,  he  had  been  negligent 
in  not  showing  sooner  the  fact  of  the  existence 
of  the  note  to  him  for  $280 — and  avers  that 
this  matter  is  no  cause  for  a  Bill  of  Review — 
denies  that  he  ever  offered  the  land  to  Han 
cock  or  to  Mrs.  Preston  for  $5,000 — denies 
that  he  saw  Hancock  during  the  year  1827 — 
says  that,  instead  of  offering  to  buy  his  land, 
Mrs.  Preston  proposed  to  borrow  from  him 
$5,000 — denies  that  there  was  any  such  un 
derstanding  with  Floyd  as  charged  in  the  bill 
— avers  that  he  could,  any  day,  have  sold  the 
land  for  much  mere  than  $5,000— that  J.  D. 
Breckinridge  informed  him  that  he  could  get 
$9,000  for  it,  but  he  was  unwilling  to  take 
that  sum  for  an  absolute  conveyance — denies 
that  any  specific  property  in  Huntsville  was' 
offered  oy  Talbot,  and  avers  that  the  offer  was 


proper  diligence,  have  made  the  discovery  in 
time  to  make  it  available  on  the  trial — nor  un 
less  the  discovered  testimony  will  prove  a  fad 
which,  had  it  been  proved  before  or.  on  the 
hearing  of  the  original  case,  would  have  pro 
duced  an  essentially  different  judgment  or 
decree — nor  unless  the  new  evidence  be  either 
documentary  or,  if  oral,  shall  establish  a  fact 
not  before  in  fssue  for  want  of  knowledge  of 
the  existence  of  the  fact  or  of  the  proof  of 
it.  This  is  the  Jong  and  well  settled  doctrine 
in  Kentucky,  (See  Respass,  <fcc.,  vs.  McClan- 
ahan,  Hardin,  347  ;  Forbes  vs.  Shackleford, 
1  Littell,  35;  Taney  vs.  Downer,  5th,  Ib.  10; 
Findley  vs.  Nancy,  3  Mon.  403;  Hendrix's 
heirs  vs.  Clay,  2  A.  K.  Marshall,  465;  Respass 
&c.,  vs.  McClanahan,  Ib.  379;  Daniel  vs.  Dan 
iel,  2  J.  J.  Marshall,  52;  Hunt  vs.  Boyer,  1  Ib., 
487;  Brewer  vs.  Bowman,  3  Ib.,  493;  Ewing 
vs.  Price,  lb,522.)  This  doctrine  is  as  rational 
every  where  as  it  is  authoritative  in  Kentucky 

i  xi   •     1      j-i      i.     "i.   •  n  •        -i 


$10,000  in  property  of  that  value — denies  the  j  and  we  think  that  it  is  generally  recognised 
— *.„„:„!,•*.„   ~e  T~I,~,, — >o    ^™i — ±; —   ~e   !,;„   an(j  maintained  wherever  the  equitable  juris 


materiality  of  Johnson's  explanation  of  his 
deposition,  or  his  right  to  construe  it  for  this 
Court,  or  Southard's  right  now  to  bring  that 
explanation  in — denies  the  genuineness  of 
the  extract  from  a  letter  to  Wing,  argues 
to  prove  that  it  is  false,  and  avers  that  the 
spurious  paper  has  been  lately  and  fraudu 
lently  altered,  by  erasing  'redeem,'  and  insert 
ing  're-purchase' — denies  that  any  of  the  va 
rious  grounds  specified  in  the  bill  are  suffi 
cient  to  justify  a  review — insists  that  all  of 
them  were  involved  in  the  issues  previously 
litigated — avers  that,  in  not  presenting  them 
in  proper  time,  Southard  was  guilty  of  gross 
negligence — and  concludes  by  averring  that, 
from  the  beginning  of  this  litigation,  South 
ard  had  been  guilty  of  the  most  unscrupulous 
frauds  and  foul  play,  and  appeals  to  the  re 
cord  to  prove  it — and  finally  denies  all  fraud 
and  every  allegation  not  directly  answered, 
and  prays  a  dismission  of  the  bill  and  an  en 
forcement  of  his  decree. 

The  Circuit  Court  dismissed  the  bill — and 
Southard  has  appealed. 

In  arguing  the  case,  we  will  first  briefly 
consider  the  law  which  must  govern  the  de 
cision  of  it.  As  Southard's  Bill  of  Review 
does  not  question  the  correctness  of  the  opin 
ion  of  this  Court  on  the  original  record,  but 
relies  altogether  011  an  alleged  discovery  of 
evidence  since  the  date  of  the  first  decree  in 
the  Circuit  Court — an  inquiry  into  the  cor 
rectness  of  the  decision  sought  to  be  reviewed 
would  be  superfluous  and  impertinent. 

Though  a  decree  may  be  set  aside  for 
fraud  in  obtaining  it,  the  proper  proceeding 
in  such  a  case  is,  not  by  a  Bill  of  Review,  but 


mi  deuce  of  England  prevails.     It  is  co-ex - 
stent  with  the  ordinances  of  Chancellor  Ba 


con,  of  which  that  one 


'ing  to  Bills  of 


apply  ii 

Review  on  extraneous  ground  has  been,  from 
he  year  of  its  promulgation,  interpreted  as  re 
quiring  either  new  matter  not  before  litigated, 
or  recorded  or  written  evidence  decisive  of  a 
'act  involved  in  the  former  issue,  and  of  the 
existence  of  which  memorial  the  complaining 
party  was,  without  his  own  fault  or  negligence, 
"gnorant,  until  it  was  too  late  to  use  it  to  pre 
vent  the  decree  sought  to  be  reviewed.  (See 
Hinds'  Practice,  58;  Gilbert's  For  Rom.  186; 
Story's  Equity  Pleading,  433-4,  N.  3  Taylor 
vs.  Sharp,  P.  Wm's  371;  Norris  vs.  Letfeve, 
Atk.,  33-4,  -2  Maddox,  Ch'y,  537;  Partridge  vs. 
TJsbome,  4th  Russell,  195;  Wiser  vs.  Blackly, 
2  Johnson's  Ch'y  Rep's,  491;  Livingston  vs. 
Hubs,  3  Ib.,  126.) 

Discovery  of  additional  witnesses,  or  of  cu 
mulative  or  explanatory  evidence  "  by  the 
swearing  of  witnesses,"  has  never  been  ad 
judged  a  sufficient  ground  for  a  Bill  of 
Review,  or  for  a  new  trial  of  an  action.  The 
rule  applied  by  most  of  the  foregoing  author 
ities,  and  virtually  recognised  in  all  of  them, 
is  dictated  by  obvious  considerations  of  poli 
cy,  security,  and  justice.  A  relaxation  of  it 
so  as  to  allow  u  new  trial  or  review,  on  the  al 
leged  discovery  of  corroborative  or  explana 
tory  testimony  of  witnesses,  would  open  the 
door  to  fraud,  subornation,  and  perjury,  and 
would  not  only  encourage  negligence,  but 
would  lead  to  vexatious  uncertainty  and  delay 
in  litigation. 

As  to  the  discovery  of  new  "matter,"  or  of 


388 


SUPREME  COURT  U.  8. 


written  evidence,  the  law  is  also  prudently ' 
stringent  in  requiring  that  such  matter  or  evi 
dence  shall  clearly  make  the  case  conclusive 
in  favor  of  the  party  seeking  to  use  it;  and, 
moreover,  that  the  Court  shall  be  well  satis 
fied  that  the  non-discovery  of  it  opportunely 
was  not  the  result  of  a  neglect  of  proper  in 
quiry  or  reasonable  diligence.  Young  vs. 
Keighly,  16th  Ve.p.  352;  -,i  &  3  Johnson,  Su 
pra;  Findly  vs.  iNancy,  Supra,  and  some  of 
the  other  cases  cited. 

flTor  will  a  review  or  new  trial  be  granted 
for  the  purpose  of  impeaching  a  witness. 
Barret  vs.  Belshe,  4  Bibb,  349;  Bun  vs.  Hoyt, 
3  Johnson,  255;  Duryee  vs.  Dennison,  5th,  lb., 
250;  Huish  vs.  Sheldon,  Sayre,  "21;  Ford  vs. 
Tilly,  2  Salk.  653;  Turner  vs.  Peart,  1  Term  R. 
717;  White  vs.  Fussel,  1  Vessey  &  Beame,  151. 
We  respectfully  submit  the  question,  whe 
ther  the  principles  recognised  and  the  rules 
established  by  the  foregoing  citations,  and 
many  other  concurrent  authorities,  do  not 
clearly  and  conclusively  sustain  the  decree 
dismissing  Southard's  Bill  of  Review,  and 
which  he  now  seeks  to  reverse  ?  "We  suggest 
in  limine  that  the  bill  should  not  be  construed 
as  intending  to  impeach  the  original  decree  as 
having  been  obtained  by  fraud.  The  only 
distinct  allegation  in  it  on  that  subject  is,  that 
Stewart  (one  of  Russell's  attornies)  fraudu 
lently  bribed  Dr.  Wood  to  give  his  deposition. 
There  is  no  allegation  that  Wood's  testimony 
was  false,  or  that,  without  his  testimony,  Rus 
sell  would  not  have  succeeded  in  this  Court. 
Nor  does  the  Bill  anywhere  intimate  what  por 
tion  of  Wood's  evidence  was  false,  or  in  what 
respect.  And,  could  the  bill  be  understood  as 
sufficiently  impeaching  the  decree  for  fraud  in 
obtaining 'it,  an  original  bill,  and  not  a  Bill  of 
Review,  was  the  proper  remedy.  If,  there 
fore,  it  be  Southard's  purpose  both  to  impeach 
the  decree  for  fraud,  and  also,  on  the  discovery 
of  new  testimony,  to  open  it  for  review,  we 
submit  the  question  whether  those  incongru 
ous  objects  can  be  united  availably  in  a  Bill 
of  Ileview. 

Bf».t  we  cannot  admit  that  either  the  allega 
tion  of  false  swearing  or  of  the  perjury  of  a 
witness  is  ground  for  a  bill  impeaching  a  judg 
ment  or  decree  for  fraud:  nor  have  we  seen  a 
case  iu  which  it  was  ever  adjudged  that  the 
subornation  of  false  testimony  by  the  suc 
cessful  party  was  such  fraud  in  the  judgment 
or  decree  as  would  lay  the  foundation  for  an 
original  bill  for  setting  it  aside.  Although  it 
might  be  gravely  questioned  on  principle,  yet 
it  it  has  been  said  that,  while  a  Bill  of  Review 
or  for  a  new  trial  will  not  be  maintained  on  an 
allegation  that  the  decree  or  judgment  was  ob 
tainedby  false  swearing  of  a  material  witness, 
yet  a  subsequent  conviction  of  the  witness  for 
the  imputed  perjury  may  be  ground  for  a  re 
view  or  new  trial.  But  whenever  alleged 
perjury  is  the  ground  for  relief,  legal  con 
viction  and  conclusive  proof  of  it  by  the 
record  are,  at  the  same  time  required  as  in 
dispensable.  And  this  is  dictated  by  the  same 
policy  which  forbids  new  trials  or  reviews  for 
impeaching  witnesses  by  other  witnesses — 


Respass  vs.  M cClanahan,  and  Brewer  vs.  Bow 
man,  Supra.  Whilst,  therefore,  we  doubt  whe 
ther,  on  well  established  principle  or  policy, 
even  a  conviction  of  purjury  is,  per  se  suffi 
cient  cause  for  a  new  trial  or  review,  we  cannot 
doubt  that  imputed  perjury  without  conviction 
is  not  sufficient  in  any  case. 

Simply  obtaining  a  decree  on  a  groundless 
claim  and  on  false  allegations,  and  even  false 
proof  by  a  party  knowing  that  his  claim  is 
unjust  and  that  his  allegation  and  proof  are 
untrue,  has  never  been  adjudged  to  be  a  fraud 
on  the  other  party,  for  which  he  could  be  re 
lieved  from  the  decree  by  a  Bill  of  Review,  or 
an  original  bill  impeaching  it  for  fraud.  Bell 
vs.  Tucker,  4B.  Mon.,  652;  Brunk  vs,  Means, 
llth  Ib.,  219. 

If  procuring  a  decree  by  false  allegatians, 
known  by  the  party  making  them  to  be  untrue, 
and  also  "availing  himself  of  false  testimony, 
knowing  that  it  was  not  true,  be  not,  in  judg 
ment  of  law,  srjjh  a  fraud  on  the  other  party 
as  to  subject  the  decree  to  nullification  or  even 
review,  why  should  the  fact  that  the  same  par 
ty,  who  knowingly  alleged  the  falsehood,  in 
duced  the  false  witness  to  prove  it,  make  a  case 
of  remediable  fraud  ? 

But,  if,  in  all  this,  we  are  mistaken,  we  in 
sist,  as  already  suggested,  that  there  is,  in  this 
case,  neither  proof  nor  allegation  that  Dr. 
Wood's  testimony  was  either  totally  or  parti 
ally  false;  although  Southard,  as  proved  by 
the  depositions  of  Jos.  C.  Baird,  (p.  168,)  and 
of  R.  F.  Baird,  (p.  156-7,)  and  of  E.  Clark  (p. 
145-6,)  and  of  Deering,  (p  155-6,)  and  of  W. 
J.  Clarke,  (p.  259-60-61,)  made  elaborate  and 
sinister  efforts  to  seduce  Wood,and  fraudulently 
extract  from  him  something  inconsistent  with 
the  truth  of  his  deposition,  his  failure  was  so 
signal  as  to  reflect  corroborative  credit  ou 
Wood's  testimony.  In  the  original  case, 
Southard  made  a  desperate  effort  to  impeach 
Wood's  testimony.  In  that  he  failed.  This 
Court,  in  its  opinion,  said  that  he  should  be 
deemed  credible,  and  moreover  said  that  his 
statements  were  intrinsically  probable,  and 
were  also  corroborated  by  other  facts  in  the  re 
cord.  The  assault  now  made  upon  him,  and 
on  the  attorney  of  Russell,  is  but  a  renewed 
effort  to  impeach  testimony  that  was  accred 
ited  and  considered  by  this  Court  in  its  origi 
nal  decision. 

Could  this  forlorn  hope  succeed,  the  only 
effect  of  the  success  would  be  to  deprive  Rus 
sell  of  Wood's  testimony.  The  setting  aside 
of  the  decree  would  not  follow  as  a  necessary 
or  even  a  probable  consequence.  If  there  be 
enough  still  remaining  to  sustain  that  decree, 
it  will  stand.  And  that  there  will  be  enough, 
we  feel  perfectly  satisfied.  The  gross  inacle- 
'  quacy  of  consideration — the  defeasance  and 
its  accompanying  circumstances — the  peculiar 
and  extraordinary  means  employed  to  disguise 
the  true  character  of  the  contract — the  condi 
tion  and  objects  of  Russell — the  character, 
business  and  conduct  of  the  Southards — the 
allegations,  evasions,  inconsistencies,  and 
falsehoods  of  the  answer  of  D.  R.  Southard — 
Jonhson's  testimony,  proving,  as  this  Court 


SUPREME  COURT  U.  S. 


389 


said,  a  mortgage — these  and  other  considera 
tions,  independently  of  Wood's  testimony,  are 
amply  sufficient  to  sustain  the  former  opinion 
of  this  Court,  as  shown  by  that  opinion  itself, 
and  by  abundant  citations  of  recognised  prin 
ciples  and  adjudged  cases  in  our  former  brief. 
Then  the  allegations  as  to  Wood  and  Stew 
art,  had  they  been  sufficiently  explicit  to  im 
pute  subornation  and  perjury,  and  had  they 
been  also  proved,  would  not  have  amounted  to 
vitiating  and  available  fraud  in  obtaining  the 
original  decree,  which  could  not  be  annulled 
or  changed  on  that  ground  by  an  original  bill 
impeaching  it  for  fraud.     This  matter  conse 
quently  is,  in  effect,  only  an  impeachment  of 
the  credibility  of  a  witness;  and  which,  had 
it  been  possible,  would  have  been  ostensibly 
effected  by  the  swearing,  and  perhaps  perjury, 
of  other  witnesses,   and    by  corruption  and 
foul  combination.    But  though  means  extraor 
dinary  and  discreditable  have  been  employed 
to  destroy  Wood's  credibility,  the  only  circum 
stance  which  could,  in  any  degree",  tend  to 
throw  the  slightest  shade  on  the  truth  of  his 
testimony  is  the  fact  that,  about  the  time  he 
gave  his  deposition,  Mr.  Stewart  executed  his 
note  to  him  for  $280.     Is  it  proved,  or  can  this 
Court  judicially  presume  that  the  considera 
tion  was  corrupt  ?  or  can  the  Court  presume 
that  Wood  was  bribed  by  that  note  to  fabri 
cate  false  testimony  ?     Would  not  this  be  not 
only  uncharitable,   but  unreasonable  and  un 
just,  in  the  absence  even  of  any  explanatory 
circumstance  ?     But  Eussell,  in  answering  the 
charge  of  bribery,  peremptorily  denies  its  truth, 
and   affirms   that  his  manager   (Winn)  had, 
among  other    liabilities  incurred  by  him  in 
managing  the  farm,  presented  him  with  an 
account  due  Dr.  Wood  for  medical  services, 
and  also  for    a  small  sum   loaned  to  him  by 
Wood:  that,  never  having  been  ablo  to  pay 
that  debt,  he  directed  Stewart  to  adjust  it  by 
note  before  he  should  require  Wood  to  testify 
to   the  facts  which  he  had   learned   that  he 
could  prove  by  him;  und  also  to  adjust  a  de 
mand  which  Dr.  Smith  held  against  him  for  a 
large  amount;  and  that  Stewart  accordingly 
executed  the  note  for  $280  to  Wood,  but  did 
not  settle  Smith's  debt  because  that  was  in  li 
tigation.    Now   Southard  having  made  Rus 
sell  a  witness,  and  there  being  no  inconsist 
ency  or  improbability  in  his  response,  it  shouk' 
not  be  gratuitously  assumed  to  be  false.    I 
is  moreover  not  only   uncontradicted,  but  in 
trinsically  probable.     The   medical  accounl 
for  $120,  with  legal  interest  for  about  21  years 
would,  together   with  less  than  $10  loaned 
amount,  at  [the  date  of  the  note,  to  $280.    Dr 
Smith  proves  that  Stewart  did  speak  to  him 
about  settling  his  debt.     This  is  corroborative 
of  the  answer.     And  though  Smith  did  no 
know  that  Wood  had  rendered   professiona 
services  to  Russell's  numerous    slaves  while 
under  Winn's  charge,  he  himself  having  been 
generally  their   regular  physician,    yet  it  is 
quite  probable   nevertheless  that  he  did,  as 
Winn    informed    Russell,    and  as  the  lattei 
seems  to  have  believed  and  acknowledged 
But,   as  before  suggested,  if  Russell    owec 


Wood  nothing,  Stewart's  note  to  him,  even  if 
given  to  induce  him  to  testify,  would  not 
>rove  that  he  testified  falsely  or  in  what  re- 
ipect.  It  has  been  not  very  unusual,  as  in 
he  Gardiner  case,  to  pay  witnesses  a  bonus 
'or  subjecting  themselves  to  the  inconvenience 
md  responsibility  of  proving  the  truth.  In 
ts  worst  a»pect,  the  utmost  effect  of  this  rnat- 
;er 'would  De  to  impair  Wood's  credibility, 
which  cannot  be  done  by  a  Bill  of  Review. 

Our  view  of  this  matter,  therefore,  is:  1. 
That  an  original  bill  could  not  set  aside 
the  decree  for  the  alleged  subornation  of  a. 
witness.  2.  That  the  same  cause  would  be 
nsufficient  to  maintain  a  Bill  of  Review,  im- 
esa  the  witness  had  been  convicted  of  perjury, 
and  that  it  maybe  doubted  whether  even  con 
viction  would  make  a  sufficient  cause.  3. 
That  the  bill  in  this  case  does  not  allege  that 
Dr.  Wood's  testimony  was  false,  nor  intimate 
in  what  respect;  and  that,  therefore,  on  this 
point  it  is  radically  defective  and  wholly  in 
sufficient.  4.  That  there  is  no  proof  that  his 
testimony  was  untrue  in  any  particular,  but 
:hat,  on  the  contrary,  its  perfect  purity  and 
;ruth,  in  every  essential  matter,  are  stronglv 
fortified  by  the  constancy  and  emphasis  with 
which,  drunk  or  sober,  in  defiance  of  corrupt 
combinations  and  strong  temptations  to  seduce 
Liim  into  renunciation  of  some  portion  of  it,  or 
into  some  purchased  or  inadvertent  declara 
tion  or  admission  inconsistent  with  it,  he  has 
adhered  to  and  reiterated  the  truth  of  it  at  all 
times  and  under  all  circumstances.  5.  That, 
without  Wood's  testimony,  the  decree  was 
proper,  and  would  have  been  just  what  it  is. 
6.  That  the  object  of  the  Bill  of  Review  is  to 
impeach  Wood's  credibility,  which  cannot 
now  be  allowed,  and  if  allowable,  has  been 
entirely  frustrated,  and  would  be  unavailing 
to  bouthard  had  he  succeeded  in  his  purpose. 

"  The  credit  of  witnesses  is  not  to  be  im 
peached  after  hearing  and  decree.  Such  ap 
plications  for  an  examination  to  the  credit  of  a 
witness  are  always  regarded  with  great  jeal 
ousy,  and  they  are  to  be  made  before  the  hear 
ing."  (White  vs.  Fussell,  1  V.  <fc  B.,  151.) 
There  would  be  no  end  of  suits  if  the  indul 
gence  asked  for  in  this  case  were  permitted." 
Livingston  vs.  Hubbs,  3  Johnson's  Cham- 
party  Rep's,  127. 

The  other  grounds  relied  on  for  opening  the 
decree  are  not  entitled  to,  and  therefore  shall 
not  receive,  as  much  consideration  as  that  of 
the  alleged  bribery  of  Wood.  But  each  of  them 
will  be  briefly  noticed. 

1.  Champarty.  This  will,  we  presume,  be 
abandoned.  It  is  clearly  unavailable  for  three 
reasons:  1 .  According  to  common  law  a  charn- 
partous  contract  between  Russell  and  his  at 
torney  (Stewart)  could  not  be  pleaded  by 
Southard  in  bar  of  Russell's  equity  of  re 
demption.  A  Kentucky  statute  of  1824  pro 
vides  that  any  contract  for  carrying  on  a  suit, 
for  land,  in  the  adverse  possession  of  another, 
in  consideration  of  "part  or  profit  thereof," 
shall  be  unlawful,  and  shall  subject  to  forfeit 
ure,  for  the  benefit  of  such  occupant,  the 
claims  of  the  contracting  parties  to  the  land. 


390 


SUPREME  COURT  U.  S. 


Under  this  enactment,  had  the  contract  be 
tween  Russell  and  Stewart  been  prohibited 
by  it,  Southard  might  have  pleaded  the  cham- 
partj  in  bar  of  Russell's  bill.  But  the  con 
tract  was  not  prohibited  by  that  statute.  It 
was  not  a  contract  for  "part  or  profit"  of  the 
land.  Stewart  had  no  lien  on,  nor  any  inter 
est  in,  the  land.  His  fee  was  to  be  paid  in 
money,  and  for  enforcing  it,  he  must  have 
proceeded  in  personam  against  Russell.  Half 
the  value  of  the  land  was  referred  to  only  as  a 
measure  of  the  contingent  fee.  Besides,  as 
the  statute  is  severely  penal,  its  operation 
should  not,  by  construction,  be  extended  be 
yond  the  plain  import  of  its  words.  And  the 
Appellate  Court  of  Kentucky  has  invariably 
construed  it  as  not  embracing  or  infecting  with 
illegality  such  a  contract  as  that  between  Rus 
sell  and  Stewart.  See  "Wilhite  vs.  Roberts,  4, 
Dana,  173;  Blackerby  vs.  Holton,  et  al,  5  Ib., 
523. 

2.  The  statute  does  not  apply  because  South 
ard's  possession,  as  adjudged  by  this  Court, 
was  that  of  mortgagee,  and  was  therefore  not 
adverse.     Castleman  vs.  Combs,  etal  T.  Mon. 
376;  Bailey  vs.  Dickens,  5  B.  Mon.,179;  Gre 
gory's  heirs  vs.  Ford,  et  al.  Ib.,  472. 

3.  Had  the  contract  been  champertous,  still 
equity  would  not,  on  Russell's  application,  dis 
turb  it  after  it  had  been  executed — in  par  I  de- 
licto  potter  est  conditio  defendentis.  Nor,  on  well 
established  principles,  will  a  Bill  of  Review 
be  permitted  for  the  purpose  of  enforcing  a 
forfeiture  in  favor  of  Southard. 

II.  The  alleged  discovery  of  Hancock's  testi 
mony,  and  of  Oldham's  as  to  Talbot's  Alaba 
ma  property,  and  of  a  mistake,  either  by  this 
Court  or  by  the  witness  himself,  as  to  Dr. 
Johnson's  testimony,  are  all  plainly  insuffi 
cient.  These  three  distinct  allegations  are  all 
in  the  same  category.  Each  alike  depends  on 
the  question  whether  a  discovery,  after  decree, 
of  new  witnesses  concerning  matters  previous 
ly  litigated  and  adjudged  between  the  same 
Earties  is  good  ground  for  a  Bill  of  Review; 
>r  what  was  the  vain*1  of  the  land  conveyed 
by  Russell  to  Southard,  and  whether  this  con 
veyance  was  a  conditional  sale  or  mortgage, 
were  the  principal  questions  involved  in  the 
original  suit,  and  the  testimony  of  Hancock 
and  Oldham  applies  only  to  the  first,  and  that 
of  Johnson  is  merely  explanatory  of  his  for 
mer  deposition  as  to  the  last  of  these  litigated 
matters.  The  foregoing  citations  conclusively 
show  that  no  such  cumulative  evidence  by 
witnesses  is  sufficient  for  upholding  a  Bill  of 
Review.  u  No  witnesses  which  were  or  might 
have  been  examined  to  any  matter  on  the  Bill 
of  Review,  unless  it  be  to  some  matter  happen 
ing  subsequent,  which  was  not  before  in  re 
cord  or  writing,  not  known  before.  Where 
matter  of  fact  was  particularly  in  issue  before 
the  former  hearing,  though  you  have  no  proof 
of  that  matter,  upon  that  you  shall  never  have 
a  Bill  of  Review."  Hindes'  Pra.,  50;  2  Free 
man,  31;  1  Harrison's  Ch'y,  141.  "This 
Court,  after  the  most  careful  research,  cannot 
find  one  case  reported  in  which  a  Bill  of  Re 
view  has  been  allowed  on  the  discovery  of  new 


witnesses  to  prove  a  fact  which  had  before 
been  in  issue;  although  there  are  many  where 
Bills  of  Review  have  been  sustained  on  the 
discovery  of  records  and  other  writing  relating 
to  the  title  which  was  generally  put  in  issue. 
The  distinction  is  very  material.  "Written  evi 
dence  cannot  be  easily  corrupted — and  if  it 
had  been  discovered  before  the  form?r  hearing, 
the  presumption  is  strong  that  it  would  have 
been  produced  to  prevent  further  litigation  and 
expense.  New  witnesses,  it  is  granted,  may 
also  be  discovered  without  subornation,  but 
they  may  easily  be  procured  by  it,  and  the 
danger  of  admitting  them  renders  it  highly 
impolitic."  "  If,  then,  whenever  a  new  witness 
or  witnesses  can,  honestly  or  by  subornation, 
be  found  whose  testimony  may  probably 
change  a  decree  in  chancery  or  an  award,  a 
Bill  of  Review  is  received,  when  will  there 
be  an  end  of  litigation  1  And  particularly 
will  it  not  render  our  contests  for  land  almost 
literally  endless  t  "What  stability  or  certainty 
can  there  be  in  the  tenure  of  property?  The 
dangers  and  mischief  to  society  are  too  great 
to  be  endured."  Respass  vs.  McClanahan, 
(fee.,  Hardin,  Supra.  "  The  rule  is  well  settled 
that,  to  sustain  a  bill  for  a  review  or  new  trial 
at  law,  the  evidence,  if  it  applies  to  points 
formerly  in  issue,  must  be  of  such  a  perma 
nent  nature  and  unerring  character  as  to  pre 
ponderate  greatly  or  have  a  decisive  influence 
upon  the  evidence  which  is  to  be  overturned 
by  it."  Finley  vs.  Nancy,  Supra.  "  The  na 
ture  of  newly  discovered  evidence  must  be 
different  from  that  of  the  mere  accumulation 
of  witnesses  to  a  litigated  "fact."  Livingston 
vs.  Hubbs,  Supra.  Such  is  the  familiar  doc 
trine  to  be  found  in  the  books  sparsim,  and 
without  authoritative  deviation  or  question 
since  the  days  of  Chancellor  Bacon.  It  con 
cludes  the  case  as  to  the  discoveries  we  are 
now  considering.  Besides  they,  when  scruti 
nised,  amount  to  nothing  which,  if  admitted, 
could  effect  the  decree. 

Hancock's  memory  is  indistinct  and  uncer 
tain — see  his  affidavit  and  his  two  depositions 
— all  vague  and  materially  varying  as  to  facts 
and  dates.  Moreover,  he  was  not  in  Kentucky 
between  the  first  of  July,  1827,  and  the  date  of 
the  conveyance  from  Russell  to  Southard.  See 
the  deposition  of  Woolley,  p.  194,  and  of  Gen. 
Jessup,  p.  191.  The  same  depositions  prove 
that  Russell  was  not  in  Kentucky  during  that 
year,  until  after  the  8th  of  July.  Consequent 
ly,  if  Russell  made  an  offer  to  sell  to  Hancock, 
it  was  since,  and  probably  more  than  a  year 
since  he  conveyed  to  Southard;  and,  there 
fore,  if  he  ever  proposed  such  a  sale,  it  was  of 
the  equity  of  redemption,  which  was  in  fact 
worth  more  than  $5,000.  The  fact  that  there 
is  no  proof  of  the  same  offer  to  Mrs.  Preston, 
as  alleged,  is  confirmatory  of  this  view. 

III.  The  fact  proved  by  Oldham,  that  Talbot 
sold  his  Huntsville  property  for  $4,000,  would 
have  been  entitled  to  no  influence  had  it  been 
proved  before  the  decree.  Talbot  proved  that 
he  considered  Russell's  land  cheap  at  $10,000 
— that,  if  he  had  had  the  money,  he  would  have 
given  that  much  in  cash  for  it,  and  that  he 


SUPREME  COUKT,  IT.  S. 


391 


offered  him  "$10,000  in  Huntsville  property, 
houses  and  lots."  How  much  Huntsville  pro 
perty  Talbot  owned  when,  in  1827,  he  made 
the  offer,  or  how  much  it  was  then  worth,  does 
not  appear;  nor  does  it  appear  when  he  sold 
for  $4,000,  nor  how  much  he  then  owned,  nor 
how  much  he  had  sold  intermediately.  Nor 
is  all  this  very  material ;  for  his  offer  bein 
$10,000  in  Huntsville  property,  Russell,  ha 
he  acceded  to  the  proposition,  would  have  been 
entitled  to  property  worth  $10,000. 

Johnson's  explanatory  deposition  is  alto 
gether  immaterial.  Having  said,  in  his  form 
er  deposition,  that  "Russell  u-as  to  pay  the 
money  in  four  months  and  take  back  his  farm," 
he  now  says,  that  "if  this  expression  implies 
that  Riissell  was  compelled  to  pay  the  money, 
it  implies  more  than  I  intended?'  and  says  that 
his  personal  recollection  is,  that  Russell  had 
the  power  or  the  right  to  repay  the  money  in 
four  months  and  take  back  his  farm.''  And 
this  impression,  he  now  says,  he  derives  chiefly 
from  the  defeasance  itself,  as  his  memory  f'might 
be  treacherous." 

Now  does  all  this  amount  to  anything  sub 
stantial?  According  to  all  the  authorities  on 
the  subject,  would  not  the  words  used  in  his 
last  deposition,  as  well  as  those  in  his  first,  be 
constructed  as  prima  facie  importing  a  mort 
gage?  And  can  his  own  erroneous  construc 
tion  of  them  change  their  legal  effect?  Did  he 
not  write  his  original  deposition,  was  he  not 
closely  examined,  and  did  he  not  carefully 
prepare  his  answers?  And  does  he  not  tacitly 
admit  that  he  used  and  intended  to  use  the 
words  contained  in  his  first  deposition?  His 
only  explanation  now  is,  not  that  he  did  not 
use  or  intend  to  use  these  precise  words,  but 
only  that  he  did  not  intend  that  they  should 
be  construed  as  importing  what  this  Court  says 
they  legally  mean — in  other  words,  though 
the  Court  says  that  they  import  a  mortgage,  he 
says  that  he  does  not  think  they  imply  that 
Russell  was  bound  to  repay  the  money? 

Surely  this  discovery  can  be  no  ground  for 
a  Bill  of  Review:  1st.  because  there  was  no 
mistake  in  the  original  deposition ;  2d.  because 
the  discrepancy  between  that  and  the  last  one 
is  not  material;  3d.  because  the  Court,  and  not 
the  witness,  must  decide  on  the  legal  effecf  of 
the  facts  proved,  and  the  legal  construction  of 
the  words  used;  and  4th,  because  a  Bill  of  Re 
view  is  never  allowed  for  the  purpose  of  ex 
plaining  the  testimony  of  a  witness.  Were  it 
permitted  the  consequences  would  be  mon 
strous. 

IV.  Of  the  alleged  extract  of  a  letter  f/om 
Russell  to  Wing,  dated  December  1 9th,  1827, 
there  is  no  proof.  It  is  believed  to  be  spurious 
and  false.  The  purpose  for  which  it  has  been 
fabricated  was  to  show  that  Russell's  convey 
ance  to  Southard  was  not  a  mortgage.  The 
latter,  as  exhibited,  commences  with  this  sen 
tence:  "You  may  say  to  Southard  that  I  shall 
not  RE-PURCHASE  the  estate."  If  any  such 
letter  had  ever  been  received  by  Wing,  redeem, 
and  not  re-purchase,  was  the  radical  word. — 
The  extract  itself,  since  it  was  first  written, 
has  been  altered  by  obliterating  deem,  and 


inserting  purchase,  so  as  to  make  it  read  re 
purchase,  instead  of  redeem.  This  is  conclu 
sively  proved  by  Clark,  p.  142;  by  Smith,  p. 
143;  by  Pope,  p.  144;  and,  moreover,  why  was 
not  the  whole  letter  copied? 

This  lame  and  desperate  effort,  instead  of 
weakening,  strengthens  the  grounds  of  the  de 
cree.  If  such  a  letter  was  ever  received  by 
Wing,  the  fact  that  the  word  redeem  was  in 
it  shows  that  the  parties  understood  that  the 
contract  was  a  mortgage;  and  if  the  whole  ex 
tract  was  originally  a  forgery,  the  same  fact 
proves  that  Southard,  when  he  had  it  pre 
pared,  used  the  proper  word,  redeem,  without 
knowing  that  there  would  be  any  equity  of 
redemption  after  forfeiture,  and  after  Russel 
had  agreed  to  waive  it — and  to  show  falsely 
that  he  had  waived  it  was  doubtless  the  ob 
ject  of  the  forgery — but  finding,  after  the  de 
cree  of  this  Court,  that  he  was  mistaken  in 
that,  the  word  re-purchase  was  fraudulently 
subsisted  for  redeem. 

V.  The   Alabama   schedule  was    known 
and  relied  on  in  the  original  suit,  and  could 
not  be  useful  for  the  purpose  for  which  it  is 
charged  in  the  Bill  of  Review. 

VI.  The  failure  to  sell  the  land  when  offered 
at  auction  could  have  no  influence — and  if  it 
ever  could,  it  comes  too  late,  as  it  ought  to 
have  been   known  by  Southard    during  the 
pendency  of  the  suit  to  redeem. 

Having  thus  presented  an  outline  of  the 
facts  of  this  case  and  of  the  principles  which 
should  govern  the  decision  of  it,  we  will  not 
amplify  by  argument  to  make  it  more  manifest 
than  we  presume  it  already  appears  to  the 
Court,  that  there  is  no  plausible  ground  for 
reversing  the  decree  dismissing  the  Bill  of 
Review. 

There  is  no  complaint  that,  in  the  opinion 
of  this  Court  sought  to  be  reviewed  on  alleged 
discoveries  of  new  proofs,  there  was  any  error 
of  law  apparent  on  the  face  of  the  decree  or  of 
the  record.  Nor  is  it  pretended  by  Southard, 
in  his  bill,  that  this  Court  erred  in  its  con 
struction  and  application  of  the  facts  embodied 
in  the  original  record.  He  would  not  have 
been  allowed  to  file  a  Bill  of  Review  on  any 
such  allegation  had  he  chosen  to  make  it — 
Webb  vs.  Pell,  3d  Paige's  Ch'y  Rep's,  368; 
Dougherty  and  wife  vs.  Morgan's  Ex's,  6  Mon.,' 
153. 

It  would  be  unforensic  and  impertinent, 
therefore  to  attempt  by  argument  to  vindicate 
that  opinion.  Were  it  necessary  or  proper  to 
do  so,  we  should  expect  to  sustain  it,  beyond 
all  question,  on  the  grounds  on  which  the 
Court  was  pleased  to  place  it,  and  on  others 
also  which  the  Court  viewed  as  superfluous  in 
a  case  so  plain.  The  opinion  as  rendered  is 
even  beyond  the  power  of  the  Court  itself,  ex 
cept  on  some  new  and  extraneous  matter  or 
documentary  proof,  brought  before  it  by  the 
Kill  of  Review,  and  of  such  a  material  and 
decisive  character  as  to  satisfy  the  Court  that, 
aad  it  appeared  in  the  original  record,  the 
original  decree  of  the  Circuit  Court  would 
have  been  affirmed,  instead  of  being,  as  it  was, 
reversed. 


392 


StTPREMB  COTTRT,  U.  8. 


JSTo  such  matter  or  proof,  as  we  insist,  is  pre 
sented.  On  the  contrary,  the  record  of  the 
Bill  of  Review  only  strengthens  the  grounds 
on  which  this  Court  decreed  a  reversal. 

1.  "Wood's  veracity  has  been  placed  beyond 
question  by  the  triumphant  manner  in  which 
it  passed,  not  only  unscathed,  but  emblazoned, 
through  the  furnace  to  which  Southard  ven 
tured  to  subject  it. 

2.  Chambers,  (page  ] 83-4-5,)  a  new  wit 
ness,  proves  that  D.  R.  Southard  is  a  man  of 
bad  chaiacter,  not  to  be  believer1  on  oath — 
that  James  Southard  was  exacting  and  over 
reaching  in  his  contracts,  and  a  usurer — that 
he  traded  chiefly  on  D.  R.  Southard's  capital 
—that  said   James   boasted  of   his   bargain 
with  Russell — said  that  the  claims  he  had  as 
signed  to  Russell  without  resource  were  on 
men  of    doubtful  solvency — that  though   he 
said  he  had  bought  the  land,  yet  at  the  same 
time   he  said   also  that  Russell  had  a  right, 
within  four  months,  to  "redeem" — and  that  he 
was  disabled  from  doing  so  by  the  loss  of  his 
cotton  crop  and  gin. 


3.  Bullit,  (p.  101,)  Speed,  (p.  102-3,)  Bal- 
lard,  (108,) — all  men  of  high  character,  testify 
that  D.  R.  Southard's  character  for  veracity  is 
bad.     These,  too,  are  all  new  witnesses. 

4.  Southard's  conspiracy  to  seduce  Wood 
by  a  combination  with  Deering  and  others,  his 
offer  of  bribes,  and,  after  using  Deering,  his 
suicidal  attempt    to  destroy   his  own  tool's 
character,  afford  a  sample  of  his  false  conduct 
towards  Russell,  and  of  the  fraudulent  manner 
in  which  he  prepared  this  and  the  original 
ca&e.     And  in  this  conduct  of  this  bold,  reck 
less,  and  persevering  litigant,  the  Court  finds 
an  apposite  and  persuasive  illustration  of  the 
wisdom  of  the  rules  established,  as  we  think, 
by  the  authorities  we  have  cited,  for  regula 
ting  Bills  of  Review.* 

GEO.  ROBERTSON, 
C.  S.  MOREHEAD, 

*The  Court  affirmed  the  decree  of  dismis 
sion. 


PRELECTION. 


A  lot  of  20  acres  of  land,  in  the  city  of  Louisville,  having  been  di 
rected  to  be  sold,  by  a  decretal  order,  for  paying  a  debt  of  about  $400, 
which  had  devolved  on  the  owners,  who  were  all  infants — Bainbridge,  as 
thier  volunteer  friend,  made  a  private  contract  with  John  I.  Jacob,  by  which 
he  was  to  have  the  whole  lot  for  $800 — but,  as  a  sale  of  more  of  the 
ground  than  would  pay  the  debt  would  be  illegal  and  void,  they  agreed 
also  that  Jacob  should,  ostensibly,  buy  the  whole  for  the  debt — which  was 
accordingly  done — and  the  Commissioner  having  reported  that  no  per 
son  would  pay  the  debt  for  a  less  quantity,  the  Court,  ignorant  of 
the  facts,  confirmed  the  sale.  A  Bill  filed  by  the  Heirs  to  set  aside  the 
sale  was  dismissed  by  the  Circuit  Judge,  and  the  Court  of  Appeals  having 
affirmed  the  decree,  the  following  petition  was  filed  for  a  re-hearing. 
But  it  was  overruled  SUB  SILENTIO. 
50 


COURT  OF  APPEALS, 


SIMKALL'S  heirs, 

vs. 
JACOB'S  heirs. 


Petition  for  re-hear  in  y. 


The  opinion  delivered  by  Judge  Hise  in  this 
case,  as  the  judgment  of  this  court,  professes 
to  recite  all  the  material  facts  "precisely"  as 
the  record  exhibits  them.  Instead  of  doing 
so  it  has  omitted  essential  facts  on  which  we 
relied  with  more  confidence  than  on  everything 
else.  The  omitted  facts  were,  we  presume, 
overlooked,  and  not  considered  by  the  court. 
The  facts  to  which  we  allude  arc:  1st.  Those 
conducing  to  show  that,  had  the  land  been 
sold  without  the  intervention  of  Jacob,  one 
half  of  it,  at  the  utmost,  would  have  satisfied 
the  decree.  2d.  Those  conducing  to  show 
that  Bainbridge  would  never  have  permitted 
more  than  about  half  of  the  land  to  be  sold 
under  the  decree;  and  3d.  Those  showing  that 
money  enough  to  satisfy  the  decree  would  have 
been  obtained  by  loan  or  by  the  sale  of  slaves 
or  other  property  before  Bainbridge  would 
have  permitted  a  greater  sacrifice  than  was 
made  by  his  agreement  with  Jacob. 

The  opinion  assumes  that,  if  Jacob  had  not, 
by  his  private  agreement  with  Bainbridge, 
agreed  to  pay  $800  for  the  whole  lot,  it  could 
not  have  been  sold  for  more  than  the  amount 
of  the  decree  ($457,)  and  would  have  been 
thus  sold.  The  only  reason  assigned,  or  which 
could  be  imagined  for  that  conclusion,  is  the 
fact,  that,  at  the  mock  sale  made  by  the  com 
missioner,  Jacob  bid  the  amount  of  the  decree 
for  the  entire  lot,  and  no  person  bid  that  much 
for  less  than  the  whole!  With  due  respect 
we  may  say  that  this  fact,  when  analyzed, 
leads  to  no  such  conclusion,  and  that  other 
facts,  not  stated  and  probably  not  considered 
by  the  court,  make  it  altogether  improbable 
and  unreasonable.  If  the  fact  that  no  person 
bid  against  Jacob  could  authorize  the  deduc 
tion  that,  had  he  made  no  private  purchase, 
still  he  would  have  bought  the  whole  lot  for 
the  amount  of  the  decree  without  any  compe 
tition,  this  court  must  have  erred  exceedingly 
in  not  tolerating  a  like  inference  from  the  same 
facts  in  Wilson's  v.  Wilson,  &c.,  9  B.  Monroe. 

Bainbringe  proves  that  it  was  with  hesitancy 
and  reluctance  that  he  finally  consented  to  let 
Jacob  have  the  lot  for  $800 — he  certainly 
would  not  have  taken  less.  He  and  Alexan 
der  Pope,  both  wealthy  men,  had  offered  to 
borrow,  on  their  own  credit,  money  to  satisfy 
the  decree;  and,  scarce  as  money  may  have 
been,  there  could  be  no  doubt  that  their  en 
dorsement  could  have  procured  the  loan  oi 


enough  for  the  exigency.  Moreover,  Bain 
bridge  proves  that  Simrall's  heirs  and  admin 
istrator  had  several  valuable  slaves  and  other 
personal  estate.  The  inference  from  these  in 
disputable  facts,  all  of  which  seem  to  have 
been  overlooked  by  the  court,  is,  that  either 
other  property  would  have  been  sold  to  pay 
the  decree,  or  that  Bainbridge  and  Pope 
would  have  procured  the  amount  of  it  by  loan; 
or  that,  if  a  decretal  sale  had  been  fairly 
tried,  Bainbridge  would  not  have  permitted 
the  whole  lot  to  be  sacrificed  for  $457.  That 
the  whole  would  not  have  been  sold  is  not 
only  rendered  almost  certain  by  some  of  the 
foregoing  considerations,  but  is  made  quite 
sure  by  the  fact  that  Jacob  gave  $800  for  the 
whole,  and  conscqtiently  would  certainly  have 
given  $457  for  something  less  than  the  whole 
of  a  lot  which  sold  for  $6,000  in  1818,  and 
would  now  sell  for  $150,000.  But  Jacob 
having  agreed  with  Bainbridge  to  give  $800 
for  the  whole,  provided  it  should  be  formally 
knocked  off  to  him  by  the  commissioner  for 
the  amount  of  the  decree,  Bainbridge  would, 
therefore,  neither  borrow  the  money,  nor  raise 
it  by  the  sale  of  other  property,  nor  bid  against 
Jacob,  nor,  if  he  could  prevent  it,  permit  any 
other  person  to  bid  against  him.  He  testifies 
that,  after  he  had  made  the  final  arrangement 
with  Jacob,  he  considered  the  land  as  sold  and 
could  not  have  made  or  sanctioned  any  other 
disposition  or  sale  of  it.  And  he  also  testifies 
that,  at  the  commissioner's  ostensible  sale, 
Dr.  Wilson,  with  whom,  he  had  tried  to  ne 
gotiate  a  private  sale,  inquired  of  him  whether 
he  had  effected  any  such  sale,  and  he  replied 
that  it  was  all  arranged  with  Jacob,  and  that, 
thereupon,  Wilson  left  the  ground.  This  fact 
probably  prevented  others,  as  well  as  Wilson, 
from  bidding,  as  it  should  be  presumed  to 
have  been  known  to  others,  especially  all  who 
were  present  at  the  sale  and  whom  Bainbridge 
would,  of  course,  not  allow  to  bid,  because 
competition  would  frustrate  the  arrangement 
with  Jacob.  This  seems  to  be  all  morally 
certain,  but  it  is  neither  noticed  in  the  opinion 
nor  could,  we  apprehend,  have  been  consid 
ered  by  the  court.  Hence,  we  feel  authorized 
to  say  that,  without  facts  and  against  conclu 
sive  facts,  the  opinion  assumes  that,  had  not 
the  arrangement  been  made  with  Jacob,  the 
whole  of  the  lot  would  "probably"  have  been 
sold  to  satisfy  the  decree.  And  had  none  of 


SIMRALL'S  HEIRS  vs.  JACOB'S  HEIRS. 


395 


the  foregoing  considerations  appeared,  not 
only  would  there  be  no  sufficient  ground 
for  the  assumption,  but  it  would  be  crushed 
by  the  tacit  admission,  by  Jacob,  of  the  alle 
gation  that,  without  his  interference,  half  of 


with  his  secret,  and  hard,  and  unlawful  ar 
rangement. 

But  the  indefensible  assumption  we  have 
been  combatting  seems  to  be  the  pivot  on  which 
the  judgment  of  affirmance  turns;  consequently 


the  lot  or  less  would  have  satisfied  the  decree.  |  we  have  reason  to  hope  that  a  reconsideration 
Under  our  Code  of  Practice  that  allegation  j  of  the  case  will  plant  a  very  different  fulcrum 
should  be  taken  for  confessed;  and  the  same  j  on  which  no  other  than  un  essentially  different 


consequence  would  result  from  the  application 
of  the  common  law  principles  of  equity.  An 
answer  must  respond  to  every  material  allega 
tion  explicitly  and  without  evasion.  Story's 
Equity  Prac.,  sec.  852.  If  the  fact  charged 
be  within  the  respondent's  personal  knowledge, 
he  must  answer  positively,  unless  the  fact  be 
so  ancient  as  to  authorize  the  presumption  that 
the  respondent's  memory  of  it  has  become  dim. 
Lord  Clarendon  fixed  seven  years  as  a  period 
beyond  which  the  memory  should  not  be  re 
quired  or  presumed  to  go.  But  beyond  that 
time  the  answer  to  an  allegation  once  within 
the  respondent's  personal  knowledge,  though 
it  need  not  be  positive,  must  state  explicitly 
and  fully  his  "belief."  Ib.  sec.  854-5,  and 
notes. 

The  same  authority  shows  that,  when  the 
fact  alledged  had  never  been  within  the  respon 
dent's  knowledge,  he  must  respond  fully  and 
directly  as  to  his  belief  concerning  it;  and  that 
in  any  of  those  aspects  of  the  case,  silence  is 
taken  to  be  an  admission  of  the  fact  charged. 
See  5  Dana,  80;  7  Ib.  296;  3  B.  Monroe,  13; 
Ib.  185;  4  Ib.  488. 

In  this  case  it  should  be  presumed  that  Ja 
cob  knew  whether,  at  a  fair  public  sale,  unaf 
fected  by  any  private  arrangement,  less  than 
the  entire  lot  would  have  satisfied  the  decree, 
because  he  certainly  knew  whether  he  himself, 
would  have  bid  the  amount  of  the  decree  for  a 
portion  of  the  lot.  But,  as  to  that  allegation  he 
is  dumb — he  does  not  even  intimate  any  opinion 
or  belief.  A  general  denial  "of  all  other  alle 
gations,"  not  responded  to,  would  be  no  re- 


Hponse.  Story,  sec.  852,  supra.  But  Jacob 
did  not  make  even  such  denial,  he  only  said 
that  he  required  proof  of  the  allegations  he 
had  noticed,  "as  he  does  of  all  the  allegations 
not  herein  admitted."  The  fact  that  half  or 
less  of  the  lot  would  have  sold  for  the  amount 


judgment  can  rest. 

The  court  virtually  concedes,  as  every  en 
lightened  tribunal  must  concede,  that  the  com 
missioner's  sale  was  void,  and  that,  conse 
quently,  Jacob  acquired  and  held  the  lot  in 
trust  for  the  original  owners,  who  were  infants, 
and  never  did  anything  to  estop  them  to  assert 
their  equity  or  omitted  to  do  anything  neces 
sary  for  maintaining  it. 

Then  unless,  as  assumed  in  the  opinion,  the 
purchase  by  Jacob  was,  in  fact,  beneficial 
rather  than  injurious  to  the  infants,  on  what 
possible  or  imaginable  ground  shall  they  be 
denied  the  privilege  of  asserting  their  bene 
ficial  right  and  of  obtaining,  at  last,  the  en 
joyment  of  it. 

It  cannot  be  on  the  ground  that  the  proof  is 
insufficient  to  show  that  Jacob  gave  more  than 
the  amount  of  the  decree  for  the  lot;  because 
Bainbridge's  testimony  to  that  effect  is  not 
only  unimpeached  and  uncontradicted,  but  is 
intrinsically  credible,  is  fortified  by  the  cotem- 
poraneous  letters  and  accounts  found  among 
the  papers  of  Mrs.  Simrall,  and  is  made 
conclusive  by  the  character  of  Jacob's  answer 
not  denying  the  allegation,  but  professing  non- 
recollection  of  a  fact  which  he  could  not  forget, 
and  had  recited  to  another  witness  just  before 
this  suit  was  instituted. 

Nor  on  the  ground  that  the  sale,  as  made, 
was  ever  ratified  by  Simrall's  heirs;  because 
they  knew  nothing  about  the  contract,  were 
incompetent  to  bind  themselves,  and  neither 
did  nor  omitted  to  do  any  act  whereby  ratifi 
cation  or  estoppel,  express  or  implied,  could 
be  tortured  by  the  court.  Nor  on  the  ground 


that  the  heirs  received  and  enjoyed  the  excess 
of  price  over  the  amount  of  the  decree;  because 
it  was  not  appropriated,  as  Bainbridge  desired 
and  advised,  to  the  improvement  and  preser 
vation  of  their  estate,  but  was  paid  to  and 
consumed  by  their  mother  in  fractions  during 

of  the  decree  should  consequently  be  taken  as   two  ycars  after  the  date  of  the  sale;  and  not 

^"'  only  is  there  no  proof  that  the  expenditure 
was  to  their  use,  but  there  is  no  reason  for 
presuming  that  it  was,  and  especially  as  there 
is  not  even  an  allegation  or  intimation  in  the 
record  that  it  was.  Besides,  the  fact,  if  relied 


admitted  by  the  answer  of  Jacob.  But  the 
court  does  not  appear  to  have  noticed  even 
this  important,  and  as  we  think,  decisive  mat 
ter! 

On  a  full  and  careful  consideration  of  the 


foregoing  facts,  we  cannot  think  that  this 
court  would  have  said  or  could  now  say  that 
it  was  probable  that,  if  Jacob  had  not  made 
the  arrangement  he  did,  the  whole  lot  would 
have  been  sold  for  not  more,  and  perhaps  less, 
than  the  amount  of  the  decree — nor  can  we 
believe  that  the  court  could  fail  to  conclude 
that  either  no  part  of  the  lot  would  have  been 
sold,  or  that  half  or  less  of  it  would  have  sat 
isfied  the  decree,  had  not  Jacob  intervened 


on,  ought  to  have  been  litigated  and  might 
have  been  established,  and  even  then  should 
not  deprive  them  of  their  land  sold  without 
their  knowledge  or  consent;  because  if,  during 
infancy,  they  hail  consumed  the  proceeds,  they 
did  not  know  it,  and  a  lien  on  their  land  for 
the  amount  would  be  the  utmost  equitable  con 
sequence  as  against  them,  unless,  since  the 
period  of  their  infancy,  there  had  been  some 
act  of  implied  ratification,  for  presuming 


396 


SIMRALL'S  HEIRS  YS.  JACOB'S  HEIRS. 


which  there  is  no  pretence,  as  the  facts  show, 
as  far  as  such  a  negative  is  susceptible  of  being 
demonstrated,  that  they  did  not  know,  until 
just  before  the  bringing  of  this  suit,  either  that 
Jacob  had  bought  the  lot  for  $800,  or  even 
that  it  had  been  their  property,  or  sold  as  such. 
Jacob's  answer  would  alone  be  sufficient  for 
their  purpose:  by  not  responding  to  the 
allegation  of  ignorance  and  non-discovery  he 
admits  it,  as  decided  in  the  analagous  case  of 
Wilson  v.  Wilson,  &c.,  9  B.  Monroe.  But, 
in  addition  to  the  admission  in  the  pleadings, 
the  facts  proved  and  the  intrinsic  probabilities 
resulting  ought  to  be  alone  conclusive  on  this 
point. 

Nor,  consequently,  on  the  ground  of  time. 
There  never  was  a  case  in  which  the  facts 
proved  more  clearly  ignorance  and  non-discov 
ery,  and  more  satisfactory  reasons  why  the 
discovery,  finally  made  from  an  accidental 
clue,  was  not  andjcould  not  have  been  made 
sooner  than  it  was.  Moreover,  Jacob  will  be 
a  gainer,  rather  than  a  loser,  by  the  lapse  of 
time,  especially  if  he  should  be  required  to 
surrender  only  half  the  spoil,  the  other  half 
alone  making  a  stupendous  speculation. — 
There  can  be  no  possible  doubt,  as  this  court's 
opinion  seems  to  admit,  that  Jacob  illegally 
bought  the  whole  lot  for  $800,  without  the 
authority  of  the  infant  owners,  and  without 
their  consent  or  knowledge;  consequently  they, 
and  not  he,  might  complain  of  time  and  its 
consequences. 

Nor  on  the  ground  that  the  commissioner 
was  not  apprised  of  the  private  arrangement 
between  Jacob  and  Bainbridge  as  the  volunteer 
friend  of  the  infants.  It  is  altogetner  proba 
ble  that  the  commissioner  knew  that  such  an 
arrangement  had  been  made,  and  that  Jacob, 
who  could  not  attain  his  object  unless  the  com 
missioner  should  sell  the  whole  lot  for  the 
amount  of  the  decree,  communicated  to  him 
the  fact  that  he  had  agreed,  in  that  event,  to 
pay  $800.  But  it  is  perfectly  immaterial 
whether  the  commissioner  had  knowledge  of 
the  agreement  or  not,  th«  sale  was  equally 
illegal  and  void  in  either  aspect  of  that  fact, 
and  can  derive  no  actual  validity  either  from 
the  commissioner's  report  of  his  official  acts  or 
from  the  approval  of  the  court,  which  was  a 
matter  of  course  without  any  knowledge  of 
the  hidden  fact  which  mads  an  apparently  legal 
sale  illegal  and  void. 

Nor  on  the  ground  that  actual  fraud  is  not 
established.  Many  circumstances  conduce  to 
show  such  fraud  on  the  part  of  Jacob;  but,  not 
needing  any  such  resource,  we  will  not  dwell 
on  that  matter.  The  undoubted  facts  show 
that  the  sale,  as  reported,  was  not  the  true 
sale,  and  was  made  illegal  and  void  by  the 
private  arrangement  which  controlled  and 
produced  it.  This  was  certainly,  at  least,  a 
constructive  fraud  on  the  infants,  on  the  law, 
and  on  the  court;  and  had  there  been  no  con 
structive  fraud,  a  trust  resulted  from  the  ille 


gality  of  the  whole  arrangement,  if  all  had 
been  done  with  the  most  pure  good  faith.  A 
sale  of  more  land  than  was  necessary  to  satisfy 
the  decree  was  unauthorized  and  void;  the 
actual  sale  was  of  the  whole  lot,  and 'for  exactly 
the  amount  of  the  decree;  had  not  the  private 
and  unauthorized  sale  of  the  whole  lot  for  no 
more  than  the  decree  required  been  made,  either 
none  of  it,  or  not  more  than  about  half  of  it, 
would  have  been  sold.  Bainbridge  had  no 
authority  to  bind  the  infants.  Jacob  knew 
this,  and,  while  he  was  more  than  willing  to 
get  the  whole  lot  for  $800,  he  knew  also  that 
the  only  way  to  effect  the  object  was  to  agree 
secretly  to  give  that  sum  for  the  whole,  refuse 
to  buy  less,  and  secure  a  surreptitious  title  by 
a  formal  sale  by  the  commissioner  to  him  for 
the  amount  of  the  decree  without  competition. 
His  illegal  arrangement  with  Bainbridge  se 
cured  and  effected  this — there  was  no  rival 
bid  because  it  would  have  been  unavailing,  for, 
had  any  person  ventured  to  bid  the  amount  of 
the  decree  for  less  than  the  whole  lot,  Bain 
bridge,  considering  himself  bound  to  Jacob, 
would  not  have  permitted  a  sale  of  part;  and 
consequently  there  must  either  have  been  no 
sale  or  Jacob  must  have  been  the  purchaser  of 
the  whole  lot  for  the  amount  of  the  decree  as 
agreed  and  effectually  pre-arranged.  It  can- 
no.t,  we  think,  be  possible  for  the  court,  on  a 
review  of  all  the  facts,  to  adhere  to  the  sugges 
tion  in  the  opinion  that  the  arrangement  be 
tween  Bainbridge  and  Jacob  was  merely  hy 
pothetical,  and  should  not  be  presumed  to 
have  influenced  the  official  sale  under  the  de 
cree.  Had  this  been  so,  why  was  the  private 
contract  made?  If,  without  some  such  arrange 
ment,  Jacob  could  have  bought  the  whole  of 
the  lot  for  the  amount  of  the  decree,  why  did 
he  agree  to  paynearly  double  that  sum?  The 
answer  is  obvious  and  inevitable:  the  private 
contract  was  the  sale,  and  secured,  as  was  in 
tended  and  arranged,  the  mere  form  of  official 
sale  of  the  whole  lot  to  Jacob  for  the  amount  of 
the  decree.  How  then  could  it  ever  be  re 
peated  by  the  court  that  it  is  not  probable  that 
the  contract  for  the  whole  lot  at  $800  had  any 
influence  on  the  sale,  and  that,  if  that  arrange 
ment  had  never  been  made,  it  is  probable  that 
Jacob  would  have  bought  the  whole  for  $457, 
or  less.  The  court  did  not  thus  assume  or 
reason  in  Wilson's  heirs  v.  Wilson,  &c.,  9  B. 
Monroe. 

Not  only  was  the  private  sale  intended  to 
prevent  a  public  sale  of  a  fraction,  but  it  pre 
vented  Bainbridge  from  borrowing  the  money 
or  selling  other  property,  and  compelled  him 
to  sell  the  whole  lot  and  nominally  for  only 
the  amount  of  the  decree,  without  the  privilege 
of  bidding  against  Jacob.  The  case  is,  there 
fore,  just  such  in  principle  as  it  would  have 
been,  had  Jacob  bid  $800  at  the  commission 
er's  sale,  and  induced  a  report  that  he  was  the 
highest  and  only  bidder,  and  became  the  pur 
chaser  of  the  entire  lot  for  the  amount  of  tb« 
decree. 


SIMRALL'S  HEIBS  vs.  JACOB'S  HEIRS. 


397 


But  the  court,  in  its  opinion,  seems  very 
properly  to  repudiate  every  other  ground  for 
the  affirmance  than  the  assumption  that  Jacob 
was  fairly  the  highest  and  only  bidder,  and 
would  have  bought  the  entire  lot  for  the  amount 
of  the  decree  or  less,  had  he  made  no  contract 
with  Bainbridge.  And  if  this  be  untenable, 
as  it  appears  clearly  to  us  to  be,  we  cannot  see 
how  a  change  of  the  opinion  and  a  reversal 
of  the  decree  of  the  circuit  court  can  be  rea 
sonably  or  consistently  avoided.  That  ground 
being  removed,  the  case,  in  its  best  attitude  for 
Jacob,  is  one  of  implied  trust  resulting  to  in 
fant  heirs  from  an  illegal  and  void  purchase  of 
their  land  without  their  knowledge  or  sanction, 
and  which  trust  the  court,  on  their  application, 
must  enforce  unless  they  had  done  something 
which  renders  it  inequitable.  It  is  not  alleged 
by  Jacob,  or  intimated  by  his  counsel,  that 
those  heirs  have  done  any  such  thing  them 
selves,  or  that  any  other  person,  who  had 
authority  to  act  for  and  bind  them,  has  ever 
done  any  such  thing.  Then  the  case  is  a  plain 
one  on  general  and  well  established  principles 
of  equity,  and  which  have  been  recognized  by 
this  court  in  Wilson's  heirs  r.  Wilson,  supra. 

The  opinion  delivered  in  that  case  settles 
this;  and  in  our  judgment  both  opinions  cannot 
stand  as  exponents  of  the  law  of  the  land. 
One  of  them  must  be  wrong.  Though  the 
facts  of  the  two  cases  may  be,  in  some  slight 
degree,  circumstantially  different,  yet,  in  prin 
ciple  and  everything  else  essential,  they  run 
on  all  fours  together,  and  are  substantially 
identical  excepting  only  in  two  particulars, 
which  make  this  a  stronger  case  for  relief 
than  that  in  9  B.  Monroe.  In  the  case  pub 
lished  there  may  have  been  actual  fraud.  But 
this  difference,  if  existing,  would  be  immate 
rial,  for  trust  resulting  from  illegality  would 
be  as  effectual  for  relief  without,  as  it  would 
be  with  the  incident  of  actual  fraud;  and  this 
is  virtually  decided  in  the  reported  case,  which 
recognizes  the  doctrine  that  the  trust  resulting 
from  an  unauthorized  private  sale  of  an  entire 
tract  of  land  for  a  much  larger  sum  than  that 
for  which  a  sale  of  as  mnch  only  as  should  be 
necessary  to  pay  an  adjudged  debt  was  decreed, 
and  a  public  sale,  pro  forma,  of  the  whole  tract 
for  the  amount  decreed,  for  the  purpose  of 
confirming  the  private  sale,  was  a  sufficient 
ground  for  setting  aside  the  sale  and  restoring 
the  land  on  equitable  terms  to  the  outraged 
infant  owners.  See  p.  276-8  and  280.  In 
that  case,  although  the  commissioner  may 
hare  known  that  Hicks,  the  only  bidder  at  his 
sale,  had  made  a  contract  with  two  of  the 
adult  owners  of  the  land  for  paying  a  much 
larger  sum  than  the  amount  of  the  decree,  and 
by  which  contract  it  was  understood  and  in 
tended  that  he  should  buy  the  whole  tract 
under  the  decree  and  for  the  decretal  debt,  yet 
it  was  neither  alledged  nor  should  be  presumed 
that  the  commissioner  did  not  allow  reasonable 
time  for  other  bids,  or  in  any  way,  acted  un 
fairly  at  the  eale,  or  did  anything  to  prevent 


full  and  fair  competition.  And  therefore,  and 
because  also  the  commissioner  had  no  interest 
in  the  sale,  and  both  he  and  Hicks  (the  pur 
chaser)  may  have  understood  (as  they  averred 
that  they  did)  that  the  residue  of  price  given  by 
the  private  contract  was,  after  satisfying  the 
decree,  to  be  applied  to  the  payment  of  other 
debts  exceeding  in  amount  the  real  value  of 
the  land,  and  for  which  it  was  liable,  the  court 
exonerated  the  commissioner  from  liability 
and  decreed  relief  in  favor  of  the  infant  heirs 
against  Hicks,  and  on  the  ground  of  trust,  as 
the  opinion  will  undeniably  show.  After  de 
ciding  that  a  bonafide  purchaser  from  Hicks 
was  not  responsible,  the  court,  in  that  opinion 
says:  "Hicks — whether  he  be  regarded  as  a 
fraudulent  purchaser  or  as  vender  who  violated 
his  trust  by  selling  the  land,  is,  in  either  case, 
personally  liable  for  the  injury  which  he  has 
done  to  the  complainants.  Having  received 
and  enjoyed,  and  sold  the  very  property  to 
which  the  complainants  were  entitled,  and  in 
violation  of  their  rights,  he  cannot  protect  him 
self  against  the  consequent  liability  on  the 
ground,  however  true,  that  he  supposed  the 
land  was  liable  for  the  debts  which  he  agreed 
to  pay,  and  that  the  arrangement  by  which  it 
was  subject  to  them,  though  irregular,  was  not 
unjust  or  injurious.  It  was  his  duty,  as  the 
person  acquiring  the  property,  to  know  that 
the  facts  existed  to  relieve  his  conduct  from  the 
charge  of  flagrant  injustice  and  injury,  and 
to  take  care  that  the  price  paid  by  him  was  so 
applied  as  to  effect  the  equity  of  complainants" 
— that  is  to  the  payment  of  other  debts  for 
which  the  same  land  was  liable.  This  proves 
that  trust  alone  arising  from  an  illegal  con 
tract,  however  honorable,  was  sufficient. 

To  show  that,  without  actual  fraud,  the  case 
was  one  of  resulting  trust,  the  court  had  pre 
viously  said  in  the  opinion,  "as  it  is  entirely 
certain  that  the  land  was  not  purchased  for  the 
sum  of  $42,  reported  by  the  commissioner, 
but  for  a  much  larger  sum  admitted  by  Hicks 
to  have  been  paid  by  agreement  with  Joseph 
Wilson  and  others,  it  is  obvious  that,  while  the 
commissioner's  sale  for  $41  was  used  as  the 
means  of  passing  the  legal  title  in  apparent 
compliance  with  the  equity  of  the  complainants 
and  their  co-heirs,  and  apparently  in  extin 
guishment  of  it,  the  real  purchase  was  for  a 
much  larger  sum,  and  by  private  or  indi 
vidual  arrangement.  The  real  subject  of 
the  private,  as  well  as  the  public  sale,  was 
the  equity  of  all  the  heirs  which  was  perfect, 
except  for  the  charge  of  $41"— page  276. 
The  opinion  then  puts  the  illustrative  question, 
whether,  if,  instead  of  the  private  agreement 
which  was  made,  Hicks  had  agreed  with  an 
opposing  bidder  to  give  him  the  same  sum  not 
to  bid  against  him,  "he  would  not  hold  the 
land  in  trust  for  the  owner,  except  to  the  ex 
tent  of  the  ostensible  sum  for  which  it  was 
sold  under  the  decree?"  And  then  adds: 
"Hicks  being  apprised  of  the  equity  of  the 


398 


SIMRALL'S  HEIRS  vs.  JACOB'S  HEIRS. 


heirs,  (that  is,  to  all  the  land  which  should 
not  be  necessary  to  pay  the  decreed  debt,) 
could  not,  by  any  agreement  with  such  of  them 
as  were  present,  extinguish  the  equity  of  those 
who  were  absent  merely  on  the  ground  that 
they  were  co-heirs,  and  much  less  on  the 
ground  that  they  were  infants.  He  could  not 
fairly  extinguish  their  equity  except  by  pur 
chasing  it  from  them  or  their  agent,  and  he 
could  not  repell  it  except  by  some  fair  claim 
against  the  land,  or  at  least  against  them  per 
sonally.  If  he  intended  to  acquire  the  interest 
of  the  absent  heirs  by  the  arrangement  with  Jo 
seph  Wilson,  (their  brother,)  he  did  not  ac 
quire  it  any  further  than  the  acts  of  Joseph 
were  authorised  or  ratified  by  the  others." 
Again,  on  the  next  page,  the  court  says:  "Un 
der  these  circumstances  we  cannot  doubt  that, 


Monroe?  The  difference  between  the  amount 
of  the  decree  and  that  given  by  the  private 
contract  was  greater  in  the  latter  than  in  our 
case.  But  that  circumstance  has  no  effect  on 
the  principle  which  equally  applies  to  both 
cases.  And  in  some  other  respects,  as  already 
asserted,  our  case  is  stronger  against  the  pur 
chaser  than  the  case  reported:  1.  In  ours  a 
stranger  made  the  private  and  attended  the 
public  sale  as  a  volunteer  friend  of  unconscious 
infancy;  in  the  other,  an  adult  brother  and 
joint  owner  made  the  private  sale  and  at 
tended  the  public.  2.  In  the  reported  case 
the  purchaser  was  informed  and  probably  be 
lieved  that  the  whole  amount  given  by  him 
was  to  be  applied  to  the  payment  of  debts  for 
which  the  land  was  bound,  and  which,  at  least, 
equalled  its  value,  and  may,  therefore,  have 


if  Hicks  had  retained  the  land,  the  complain-  (believed  a  sale  of  the  whole  tract  would  be 
ants  would  have  been  entitled  to  reclaim  their  necessary,  and  that,  consequently,  the  infant 


respective  interests  in  it  subject  only  to  the 
proportioned  burthen  of  $41." 

And  finally,  on  page  380,  in  disposing  of 
the  lapse  of  time,  (15  years,)  the  court  said: 
"And,  as  upon  the  pleadings,  it  is  to  be  as 
sumed  as  against  him  (Hicks,)  that  complain 
ants  had  discovered  the  fact  and  their  rights 
but  a  few  months  before  the  filing  of  their  bill, 
and,  as  in  cases  remediable  in  equity  alone  on 
the  ground  of  fraud  or  trust,  time  does  not  run 
as  a  bar  until  the  facts  for  constituting  the 


owners  would  be  benefited  b/  his  piivate  pur 
chase  at  once  of  the  whole;  but  in  our  case 
Jacob  had  no  such  equitable  excuse — he  knew 
that  a  sale  of  more  than  half  of  the  lot  would 
not  be  required,  aud  that  nearly  half  the  sum 
he  gave  for  the  whole  of  it  would  be  paid  to 
the  widow,  to  be  used  and  spent  as  she  might 
choose.  And  if,  in  one  case  the  private  con 
tract  bound  Joseph  Wilson  and  prevented 
him,  as  probably  others,  from  bidding  at  the 
public  sale,  in  the  other  case  the  private  sale 


fraud  or  trust  are  known  or  should  have  been «  bound  up  Bainbridge,  and  certainly  prevented 
known  to   the  party  injured;  and,  as  in  this '  him,   and  almost    as  certainly   others,  from 


case,  it  does  not  appear  that  there  was  any 
circumstance  known  to  the  complainants  which 
would  have  led  them  to  such  inquiry  as  would 
have  put  them  in  possession  of  the  facts  which 
occurred  during  the  infancy  of  at  least  six  of 
them — we  are  of  the  opinion  that  neither  the 
statute  of  limitations  nor  the  lapse  of  time  can 
operate  as  a  bar  to  their  claim." 

It  is  evident  that  the  leading  and  decisive 
principle  by  which  this  court  Avas  led  to  adjudge 
Hicks,  as  purchaser  for  the  amount  of  the  de 
cree  at  the  commissioner's  sale,  liable  to  the 
infant  owners,  was  that — as  he,  in  fact,  by  an  un 
authorized  private  contract,  gave  a  larger  price 
estimated  as  the  value  of  the  entire  tract,  and 
which  showed  that  more  was  sold  by  the  com 
missioner  than  he  was  authorized  to  sell  or 
would  probably  have  sold  had  there  been  no 
such  private  sale,  and  that,  therefore,  the  in 
fant  owners,  who  were  not  bound  by  that  pri 
vate  contract,  still  retained  their  equitable 
right — consequently  the  purchaser  thus,  acqui 
ring  the  legal  title  held  it  by  an  implied  trust, 
to  their  use.  In  applying  that  principle  to 
the  facts  of  that  case,  the  court  only  recognized 
long  and  well  established  doctrine  of  out 


bidding  against  Jacob  at  the  decretal  sale.  In 
the  case  cited  from  9  B.  Monroe,  the  court  also 
decided  that  it  was  incumbent  on  the  purchaser, 
as  in  every  case  of  constructive  fraud,  to  prove 
satisfactorily  some  sufficient  ground  for  barring 
the  resulting  equity.  Then,  to  show  such  re- 
pellant  ground,  the  burthen  of  proof  de 
volved  on  Jacob.  He  has  furnished  no  such 
proof. 

Then  how  can  it  be  said  that  the  principle 
of  the  decision  in  B.  Monroe  is  inapplicable  to 
our  case?  We  have  no  doubt  that  the  reported 
decision  is  right;  and  if  it  be,  we  cannot  pos 
sibly  see  how  the  opposite  decision  in  our  case 
can  be  right. 

And  as  to  the  lapse  of  time  also,  our  case  is 
much  stronger  than  the  other  against  its  op 
eration.  In  the  latter  there  was  nothing  but 
infancy,  and  the  constructive  admission,  by 
the  answer,  of  the  alleged  non- discovery.  In 
ours  the  same  reasons  are  conclusively  forti 
fied  by  the  nature  of  the  case  and  by  several 
additional  facts  indisputably  proved. 

Wherefore,  as  counsel  for  Simrall's  heirs, 
the  undersigned  feel  constrained  to  ask  the 
court  for  a  re-argument  and  thorough  recon- 


equitable  jurisprudence.      That  was  undoubt- !  sideration  of  this  case;  and,  while  they  most 


edly  the  ground  of  the  decision  against  Hicks 
and  adjudged,  as  itself  alone,  a  sufficient  ground 
even  if  actual  fraud  had  been  an  additional 
ground.  Then,  so  far  as  Simrall's  heirs  claim 
relief  in  this  case,  in  what  essential  feature 
does  it  materially  differ  from  the  case  in  9  B. 


earnestly  desire,  they  cannot  but  confidently 
hope,  that  their  petition  will  be  granted,  for 
the  following  principal  reasons: 

1.  Because  they  desire,  and  the  case  emi 
nently  deserves,  a  careful  investigation  and 
deliberate  decision  by  a  full  court — only  three 


SIMBALL'S  HEIBS  ts.  JACOB'S  EEEBS, 


399 


of  its  members  participating  in  the  opinion  as 
rendered. 

2.  Because,  for  reasons  herein  suggested 
and  others  which  would  be  urged  in  a  re-argu- 
gument,  they  believe,  and,  with  becoming  re 
spect,  declare  that  the  decision  sought  to  be 
reviewed  is  radically  wrong,  is  inconsistent 
with  the  principle  of  a  former  decision  ap 
proved  by  the   country,  and  is  founded  on 
deductions  not  only  unsustained  by  the  facts 
stated  in  it,  but  effectually  repelled  by  other 
facts  not  stated  and  probably  not  noticed  by 
the  court;   and  they,  therefore,   respectfully 
suggest  that,  should  the  court  even  adhere  to 
the  same  judgment,  it  is  due  to  the  parties,  to 
the  court,  and  to  the  Kentucky  bar  that  the 
judgment  should  be  accompanied  by  a  state 
ment  of  all  material  facts  as  appearing  in  the 
record,  and  should  be  made  to  rest  on  some 
other,  and  more  tenable  and  consistent  ground 
than  that  on  which  the  late  opinion  seems  to 
place  it. 

3.  Because,  with  equal  confidence  and  re 
spect,  they  believe  and  declare  that  these  two 
decisions,  so  antagonistic  in  effect,  are  based 
upon  a  perfect  parallelism  of  principle  and 
essential  facts,  and    cannot,  therefore,  both 
stand;  and  that,  consequently,  the  dignity  of 
our  jurisprudence  and  the  authority  of  our  ad 
judged    cases  would    be  promoted  by  such 
changes  of  the  one  now  within  the  power  o 
the  court  as  to  make  them  appear  to  harmon 
ize  on  the  facts  as  they  really  are. 

4.  A  reconsideration  and   decision  by  al 
the  Judges  will  make  its  final  opinion,  what 
ever  it  shall  be,  more  authoritative,  more  sat 
isfactory  to  the  unsuccessful  party  and  to  the 
profession,  and  doubtless  far  more  satisfactory 
to  the  court  itself. 


5.  Because — as  the  most  illlustrions  old 
Fudges  of  England  commended  their  decisions 

and  harmonized  the  law  by  their  prudent  habit 
)f  disregarding  the  false  pride  of  prompt  and 
nfallible  judgment  and  considering  only  their 
udicial  duty  and  reputation,  and  therefore 
>atiently,  and  even  anxiously,  re -hearing  new 
and  important  causes  until  they  were  perfectly 
satisfied — so  this  court,  by  following  that  safe 
and  wise  example  in  such  cases  as  this,  would 
relieve  itself  of  all  unquieting  apprehension  of 
udicial  error  and  injustice,  and  would  greatly 
commend  its  own  decisions,  exalt  its  own 
character,  and  ensure  that  general  confidence 
and  respect  which  the  public  interests  require 
that  a  court  of  the  last  resort  should  command 
and  possess.  Moreover  a  reconsideration  can 
do  no  harm,  and  may  do  much  good;  for,  if 
it  shall  only  confirm  the  opinion  delivered,  the 
result  will  be  more  satisfactory  and  the  decision 
more  authoritative;  and,  if  it  should  lead  to 
any  essential  change  in  the  opinion,  the  court 
would  be  rescued  from  the  possible  imputation 
of  hasty  error,  and  would  probably  rescue 
suffering  litigants  from  injustice. 

6.  Because  the  decree  of  the  court  may  be 
consistently  reversed  in  such  manner  as  to 
leave  Jacob  a  handsome  speculation  on  his  little 
investment,  and,  at  the  same  time,  secure  to 
Simrall's  heirs  a  very  comfortable  portion  of 
that  patrimony  of  which,  by  an  illegal  act,  he 
has  so  long  deprived  them.     And  surely,  in 
such  a  case,  if  the  court  should  be  perplexed 
with  doubt,  it  ought  to  incline  to  a  decision  so 
harmless  to  the  one  party  and  so  beneficent  to 
the  other. 

ROBERTSON  &  MOREHEAD. 


PRELECTION, 


Having  been  elected  three  times  successively  to  the  House  of  Represen 
tatives  of  the  United  States  from  "the  Garrard  District,"  Mr.  Robertson 
resigned  the  whole  of  his  third  term,  and  made  the  following  Valedictory 
Address  to  his  constituents  through  "The  LUMINARY,"  of  the  llth 
May,  1821. 


VALEDICTORY    ADDRESS, 


To    the  Electors  of  the  Seventh 

Congressional  District  of  Kentucky: 
FELLOW- CITIZENS — I  have  this  day  re 
signed  my  seat  in  the  Congress  of  the  United 
States.  This  I  considered  proper,  after  the 
most  grave  and  deliberate  reflections  on  my 
duties  to  you,  and  to  those  to  whom  I  am  bound 
by  other  and  more  sacred  ties;  and  I  hope  you 
will  believe  that  I  have  not  taken  this  course 


necessity  which  has  controlled  my  decision. 
But,  among  the  many  embarrassments  with 
which,  in  coming  to  this  decision,  I  have 
been  perplexed,  I  have  derived  gratification 
and  encouragement  from  the  conviction  that, 
if  my  services  could,  at  any  time,  be  con 
sidered  of  any  value,  there  is  nothing  in  the 
present  condition  of  the  country  that  could 
oppose  my  retirement  now;  and  that  all  the 


circumstances  of  the  time  1  have  selected,  are 
as  favorable  to  it,  as  any  that  might  ever 
occur.  I  am  happy  on  this  occasion  in  being 
able  to  congratulate  you  on  the  enviable  con- 


from  motives  of  interest  or  convenience,  nor 
without  the  most  respectful  attention  to  your 
claims  on  my  services,  and  a  becoming 
sense  of  gratrtdde  for  your  kindness  and  in 
dulgence.  If  my  circumstances  and  private  J  dition  of  our  country  in  all  its  great  interests 
duties  would  have  permitted  me  to  consult  free- !  and  relations.  Never  did  more  tranquility, 
ly  my  own  inclination,  I  would  have  remained  I  peace  and  concord  pervade  the  Union  than  at 
in  your  service  as  long  as  my  conduct  should  j  this  moment;  and  never  was  there,  in  any 
obtain  your  approbation  and  your  suffrage,  j  country  in  my  opinion,  less  necessity  for  na- 
No  situation  under  the  Federal  Constitution  j  tional  legislation.  I  believe  that  the  less  we 
could  present  as  many  attractions  to  my  taste,  legislate,  under  existing  circumstances,  the 
my  patriotism,  or  my  ambition,  as  the  one  more  we  shall  consult  the  substantial  and  per- 
which  I  have  now  abandoned;  and  no  ordina-  j  mauent  good  of  the  community.  If  we  rely, 
ry  consideration  could  have  induced  me  to  re-  ',  as  becomes  us,  on  our  physical  and  moral  ca 
pacities  for  the  principal  means  of  happiness 
and  competence — if  we  encourage  industry, 


linquish  it;  but  the  health  and  condition  of 
my  family — their  increasing  claims  on  my  care 
and  attention — and  circumstances  of  business 
and  fortune,  left  me  no  prudent  alternative. 


economy  and  public  spirit,  and   by  a   liberal 
and  diffusive  system  of  education,  literary  and 

I  determined,  therefore,  after  some  hesitancy,  j  moral,  bring  into  useful  operation  the  latent 
and  the  most  anxious  endeavors  to  ascertain  j  energies  of  the  rising  generation — if  we  will 
my  duty,  to  retire  from  a  station  in  which 'adopt  and  inculcate  enlightened,  liberal  and 
I  believed  that  I  could  not  much  longer  con-  elevated  notions  of  government,  and  of  the  so- 
tinue  without  a  violation  of  the  most  sacred  cial,  religious  and  political  rights  and  duties — 


and  paramount  duties.     And  having  formed 


such  is  the  benign  genius  of  our  institutions, 


this  resolutiou,  I  considered  it  my  duty  to  ex-  and  such  is  the  happy  posture  of  the  affairs 
ecute  it  without  longer  delay,  for  the  purpose  '  that  concern  our  welfare  as  a  nation,  that  we 
of  giving  you  sufficient  time  to  select  with  full  i  may  reach  the  proudest  destiny  with  which 


discretion  a  successor,  and  without  unnecessa- 


hope  has   ever  nattered  us,  without  the  con- 


ry  inconvenience,  at  the  next  annual  election  stant  multiplication  of  laws,  or  an  habitual 
of  State  Representatives.  I  hope  that  the  time  I  depenpencc  on  the  supposed  magic  of  Icgisla- 
which  I  have  given  you  will  be  amply  sufficient,  tion.  All  things  duly  considered,  we  have 
I  would  have  given  you  even  more,  if  I  had  very  little  cause  of  despondence  or  complaint, 
not  felt  it  my  duty  to  give  a  respectful  con- '  and  much  of  cxhiliration  and  mutual  fclici- 
sideration  to  the  opinions  arid  solicitations  of  tation. 
friends. 

When  you  duly  appreciate  the  motives 
which,  (and  which  alone)  influenced  me  on 
this  occasion,  I  have  the  fullest  confidence, 


Never,  (I  believe,)  could  the  people 


of  the  United  States  say  with  more  sincerity 
and  truth  to  the  national  legislature,  "LET 
US  ALONE."  The  most  prominent  circum 
stances,  international  and  domestic,  which 

from  the  liberality  and  indulgence  with  which  have  for  some  time  agitated  our  counsels,  and 
you  have  always  considered  my  conduct,  that  menanced  the  harmony  and  integrity  of  the 
you  will  approve  my  resolution,  and  acquiesce  Union,  having  been  satisfactorily  arranged 
without  censure,  in  my  decision.  It  is  under  during  the  last  session  of  Congress,  the  pros- 
this  hope,  and  for  this  purpose  that  I  now,  for  pect  before  us  for  years  to  come,  in  tha  most 
the  last  time  address  you.  It  is,  I  assure  comprehensive  survey,  presents,  in  the  great 
you,  with  reluctance  and  regret,  that  I  leave  outline  of  national  prosperity  an  encouraging 
your  service;  reluctance  produced  by  a  recol-  vicvr,  and  authorizes  the  most  animating 
lection  of  the  strong  obligations  to  serve  you,  hopes  of  the  longevity  of  our  institutions,  and 
which  your  repeated  acts  of  favor  have  imposed  of  the  independence  and  happiness  of  our  pco- 
on  me;  and  deep  regret  resulting  from  the  pie.  I  am  happy,  therefore,  in  believing,  that 
nature  of  the  circumstances  constituting  the  if,  under  any  circumstances,  my  feeble  talents 
51 


402 


VALEDICTORY  ADDRESS  TO  THE  CITIZENS  OF  THE 


and  the  little  experience  which  I  may  have 
acquired  in  national  legislation,  could  be  con 
sidered  by  my  warmest  friends  of  any  advan 
tage  to  your  rights,  your  interests,  or  your 
honor,  the  auspicious  circumstances  under 
which  I  retire,  diminish  their  utility  so  much, 
that  whether  I  remain  longer  in  your  service 
or  not.  becomes  of  very  little  concern,  except 
to  myself,  especially  as  you  will  have  no  diffi 
culty  in  finding  others  willing  and  able  to 
serve  you,  who  have  stronger  claims  on  your 
confidence  and  favor  than  I  can  have  any 
hope  of  possessing  or  deserving  to  enjoy. 

In  taking  leave  of  you,  I  have  the  satisfac 
tion  of  a  strong  assurance  that,  whilst  in  your 
service,  I  have  done  my  duty.  I  know  I 
honestly  endeavored  to  do  it,  by  an  undeviating 
adherence  to  those  maxims  of  public  policy 
and  public  duty  which  my  own  judgment  and 
conscience  recommended  to  me  as  best  adapted 
to  promote  the  honor  of  the  government  and 
the  good  of  the  people;  disregarding  as  far  as 
possible,  personal  and  local  considerations. 
Many  could  have  served  you  more  ably,  but 
none  more  faithfully.  That  I  have  frequently 
erred  is  probable,  but  I  flatter  myself  that  my 
errors  were  venial;  and  [  am  proud  in  being 
able  to  say  that  I  have  no  recollection  of  having 
been  reproached  either  by  you,  or  a  disappro 
ving  conscience,  with  any  aberration  from 
the  principles  of  political  rectitude,  or  any  de 
reliction  of  public  duty.  My  public  life  has 
been  short  and  humble;  it  furnishes  no 
incidents  to  flatter  pride  or  gratify  ambition. 
If  in  the  stormy  and  difficult  times  in  which  it 
•was  spent,  it  has  been  disinterested,  firm  and 
straight- forward,  I  shall  have  fulfilled  in  its 
results,  all  my  expectations,  and  have  de 
served  as  much  commendation  as  I  have  ever 
desired.  If,  in  reviewing  it,  I  see  nothing  to 
be  vain  of,  or  to  extort  the  applause  or  admi 
ration  of  others,  I  see,  what  is  more  grateful  to 
my  feelings,  that  it  exhibits  nothing  of  which 
1  am  ashamed,  or  of  which  on  mature  reflection 
I  repent.  But  while  I  recollect  no  act  of  my 
public  life  which  I  would  alter,  I  confess, 
that  I  have,  more  than  once,  done  that  which 
I  regretted,  and  still  regret,  being  compelled 
to  do  by  convictions  of  public  duty.  In  other 
words,  my  votes  have  not  always  been  in  ac- 
accord  with  my  feelings.  Political  life,  how 
ever  humble  or  uuambitious,  is  beset  with  many 
difficulties,  trials  and  perplexities;  it  is  the  cru 
cible  of  meiit,  the  ordeal  of  virtue  and  energy. 
He  who  expects  to  pass  through  unhurt  and 
self-satisfied,  and  wishes  to  be  able,  when  at 
his  journeys'  end,  to  look  back,  without  shame 
or  remorse,  on  the  various  meanderings  and 
multiform  incidents  of  the  mazy  path  which 
he  has  followed,  must  be  prepared  to  do  many 
things  incompatible  with  his  individual  inter 
ests,  and  repugnant  to  his  personal  and  local 
predilections.  He  must  expect  to  be  instructed 
by  the  suggestions  of  an  unbiased  judgment, 
frequently  to  do  that  which,  while  his  head 
approves,  his  heart  abjures.  He  must  be  pre 
pared  too,  to  smile  with  unmixed  contempt  at 
causeless  abuse,  and  to  see  his  popularity  in 


ruins  without  emotions  of  sorrow,  surprise  or 
resentment,  looking  in  triumph  to  its  day  of 
resurrection.  All  who  engage  in  political 
warfare  should  be  thus  shielded,  if  they  wish 
to  avoid  ultimate  discomfiture  and  disgrace. 
A  firm  and  honest  man  should  always  be  con 
tented  under  the  consciousness,  if  he  fall,  of 
having  done  his  duty.  He  has  also  for  his 
encouragement  an  assurance  from  the  testimo 
ny  of  all  experience,  that  if,  in  the  storms  of 
faction  or  momentary  popular  commotion  he 
shall  be,  for  awhile,  overwhelmed,  and  lighter 
bodies  should  be  permitted,  for  a  moment,  to 
mount  the  bursting  wave,  the  sunshine  of 
reason  and  the  calm  of  sober  judgment  will  soon, 
return  and  find  him  on  a  proud  eminence  high 
above  those  ephemeral  favorites  who  could 
vegetate  and  flourish  only  in  the  beams  of  pop 
ular  favor,  and  Cameleon-like,  live  by  snuffing 
air — the  breath  of  popular  applause.  "Popu 
lar  applause"  is  gratifying  to  all  good  men,  but 
there  is  danger,  if  pursued  too  eagerly,  of  its 
becoming  an  ignis  fatuus  to  decoy  us  into  error. 
No  wise  man  will  be  insensible  to  the  appro 
bation  of  his  fellow-men,  or  indifferent  about 
obtaining  it;  but  no  honest  man  will  ever  at 
tempt  to  obtain  it  in  any  other  way  than  by 
endeavoring  to  deserve  it.  The  popularity 
which  is  gratifying  to  an  honorable  and  eleva 
ted  mind,  is  not  that  evanescent  capricious 
thing  that  must  be  conciliated  by  caresses, 
and  purchased  by  dishonest  compliances,  but 
that  high  and  constant  sentiment  of  esteem 
which  follows  virtuous  actions,  and  is  their 
best  reward,  next  to  the  approbation  of  a  sound 
conscience,  which  it  will,  sooner  or  later,  grat 
ify  and  prosper. 

1  have  been  anxious  to  obtain  your  appro 
bation,  but  more  so  to  secure  that  of  my  own 
conscience.  The  last  I  know  I  enjoy — the 
first  I  have  endeavored  to  deserve.  And  I  en 
joy  a  sentiment  the  most  gratifying  to  my  feel 
ings,  in  having  good  reasou  to  believe  that  my 
feeble  efforts  to  do  ray  duty,  in  your  service, 
while  they  excite  no  sensation  of  remorse  in 
my  own  bosom,  have  been  crowned  with  your 
approbation  which  is  the  consummation  of  my 
hopes,  and  the  highest  achievement  which  my 
ambition  ever  sought  or  my  vanity  expected. 

The  connexion  which  has  hitherto  subsisted 
between  us  as  constituents  and  representative 
being  now  dissolved,  I  avail  myself  of  this  first 
moment  after  becoming  a  private  citizen,  to 
tender  you,  in  the  plenitude  of  unmixed  grat 
itude,  my  warmest  acknowledgments  for  the 
friendship  and  good  opinion  which  you  have 
so  frequently  and  so  signally  manifested  to 
wards  me.  I  shall  long  cherish  a  grateful  re 
collection  of  those  flattering  testimonials.  Ser 
vices  which  my  capacity  and  situation  will 
permit  me  to  perform,  you  may  at  any  time 
command. 

Accept  my  most  earnest  wishes  for  your 
welfare,  individually  and  collectively,  and 
believe  me  to  be,  with  sentiments  of  the  most 
profound  respect, 

Your  friend,  and  your  humble  servant, 
G.  ROBERTSON. 

LANCASTER,  1st  May,  1821. 


CONTENTS. 


1.  Argument  on  "New  Election"  of  Governor  of  Kentucky,  (1817.)      •  I 

2.  Speech  in  Congress  (1819)  against  interdicting  Slavery  in  Arkansas,  21 

3.  Speech  in  Congress  (1820)  in  favor  of  establishing  the  present  system 

of  selling  the  Public  Lands,       -  -29 

4.  Report  (1823)  on  Popular  Education  in  Kentucky,  44 

5.  Speech  against  resolutions  condemnatory  of  the  Court  of  Appeals  in 

Kentucky,                                                               -  49 

6.  Speech  on  the  Bill  for  re-organizing  (abolishing)  the  Court  of  Appeals,  75 

7.  Protest  against  the  Re-organizing  Act,     -  90 

8.  Manifesto  of  the  old  Court  Party,  (1826)         -                  -  95 

9.  Plebeian  Letters,                                                                                    -  105 

10.  Circular  Address  to  Kentucky  on  the  principle  and  policy  of  protecting 

domestic  capital  and  labor,                                                               -  138 

1 1 .  Letter  (1823)  to  Ohio  Legislature  in  favor  of  Mr.  Clay  for  President,  1 47 

12.  Invitation  (1827)  to  Mr.  Clay  to  a  Garrard  dinner,                              -  149 

13.  Garra'rd  Address  on  Presidential  election,  (1828,)     -                           -  161 

14.  Speech  at  the  Clay  Festival,  (1842,)       -                                             -  154 

15.  Address  on  the  reception  of  Mr.  Clay's  dead  body  at  Lexington,  (1852,)  166 

16.  Anniversary  Address  at  Centre  College,                                                .  160 

17.  Introductory  Lecture  (1835)  to  Law  Class  of  Transylvania,     -         -  171 

18.  Lecture  against  Nullification,                                                                -  186 

19.  Lecture  on  Equity,                                                                                    -  206 

20.  Biographical  Sketch  of  Chief- Justice  Boyle,      -                                    -  216 

21.  Lecture  on  Marriage  and  Divorce,                                                        -  227 

22.  Valedictory  Address  to  Law  Class  of  Transylvania,                    r        -  234 

23.  Lecture  on  the  Powers  of  Congress  and  the  Resolutions  of  "  '98,"     -  245 
24:  Lecture  on  Legislative  and  Popular  Instructions,      -         -                  -  257 
35.  Anniversary  Address  on  the  Settlement  of  Kentucky,       -                  -  268 

26.  Trial  of  Dr.  Abner  Baker,      -                  ....                  -  282 

27.  Speech  on  said  Trial,                                         -                           -         -  294 

28.  Speech  against  the  Repeal  of  the  Non-Importation  Act  of  1833,          -  318 

29.  Address  to  the  People  of  Fayette  on  Slavery,                                       -  330 
90.  Valedictory  to  the  Kentucky  Legislature,  (1853,)      -                          -  334 

31.  Address  to  Fayette  against  the  New  Constitution,     -                           -  338 

32.  Speech,  on  the  22nd  February,  1852,       -                                            -  352 
34.  Judicial  Opinion  on  the  Power  to  establish  Post  Roads,     -        -        -  364 


404  CONTENTS. 

35.  Brief  in  Kussell  vs.  Southard,  in  the  Supreme  Court  U.  S.      -        -  375 

36.  Brief  in  same  case  on  Bill  of  Review,    -  -  386 

37.  Petition  for  a  re-hearing  in  Simrall's  heirs  vs.  Jacob,  in  the  Kentucky 

Court  of  Appeals,  -        -  393 

38  Valedictory  to  Congressional  constituents,  1821,  •  400 


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